IN THE CASE OF:
BOARD DATE: 6 May 2010
DOCKET NUMBER: AR20090017651
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his bad conduct discharge be upgraded to a general discharge.
2. The applicant states:
* he was convicted by a jury of officers and given a bad conduct discharge
* he was assigned a reentry (RE) code of 4 which made him ineligible for reentering the Army
* he pled guilty to a lesser charge
* he snapped after a year of harassment by his staff sergeant
* he joined the Army to pay off student loans
* he served 4 years at Fort Leavenworth
* he wants to reenter the Army and complete a new enlistment contract
* he is unable to find work utilizing his bachelor's degree in business
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 19 November 1972. He enlisted in the Regular Army on 15 September 2000. He trained as a finance specialist and attained the rank of specialist.
2. On 11 February 2003, the applicant was convicted by a general court-martial of assault with intent to murder a staff sergeant. He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 7 years, and to be discharged from the service with a bad conduct discharge. The convening authority's action, dated 3 February 2004, is not available.
3. The decision of the U.S. Army Court of Criminal Appeals is not available. However, the U.S. Court of Appeals for the Armed Forces affirmed the U.S. Army Court of Criminal Appeals decision on 19 December 2006. On 22 February 2007, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.
4. Accordingly, the applicant was discharged with a bad conduct discharge on 19 March 2007 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He had served a total of 1 year, 10 months, and 16 days of creditable active service. His DD Form 214 shows lost time from 1 August 2002 to 19 March 2007.
5. On 1 October 2009, the Army Board for Correction of Military Records (ABCMR) denied the applicant's request to change his RE code to 3.
6. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
7. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
8. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.
DISCUSSION AND CONCLUSIONS:
1. Trial by court-martial was warranted by the gravity of the offense charged. The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
2. The applicant's record of service included a serious offense (assault with intent to murder a staff sergeant) for which a general court-martial convicted him. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X___ ____X___DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ _ __X_____ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20090017651
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ABCMR Record of Proceedings (cont) AR20090017651
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