IN THE CASE OF:	  

		BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20090019469 


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 upgrade of his dishonorable discharge to a general discharge.

2.  The applicant states a recent appeal decision was favorable and the “court” was found “negligent in issuing punishment that was never authorized.”  He states his rank/grade was restored.

3.  The applicant provides a copy of an extract from the United States Court of Appeals for the Armed Forces daily journal, dated 12 August 2009, which corrected an error of the Army Court of Criminal Appeals which incorrectly affirmed a reduction to the grade of E-1 when the convening authority did not approve that reduction.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant enlisted and entered active duty in the Regular Army on 31 December 1997.

2.  On 22 May 2007 the applicant was convicted by a general court-martial of two specifications of desertion between 14 September 1999 and 4 December 2006.  His sentence included:

* reduction to the grade of E-1
* 1,202 days of confinement


* forfeiture of all pay and allowances
* dishonorable discharge

3.  The convening authority only approved so much of the sentence as provided for the forfeiture, confinement for 1,172 days, and a dishonorable discharge.  He failed to address the separate line item relating to the applicant’s reduction to pay grade E-1.

4.  According to the extract provided by the applicant, in August 2009 the United States Court of Appeals for the Armed Forces noted the United States Army Court of Criminal Appeals affirmed a sentence for the applicant that included "reduction to pay grade E-1 after the convening authority had not approved that punishment.”  As such, the United States Court of Appeals for the Armed Forces corrected the decision of the United States Army Court of Criminal Appeals to show it affirmed “only so much of the sentence as provides for a dishonorable discharge, confinement for 1,172 days, and forfeiture of all pay and allowances.”

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Army discharged the applicant on 10 May 2010 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial.  This form further lists the applicant's character of service as “dishonorable.”  The applicant was separated in pay grade E-1.

6.  References:

	a.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

	b.  Army Regulation 635-200, paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	c.  Army Regulation 635-200, paragraph 1–13 (Reduction in grade) states when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600–8–19 (Enlisted Promotions and Reductions), chapter 10.

	d.  Article 58a, Uniform Code of Military Justice (UCMJ) states unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in pay grade above E-1, as approved by the convening authority, that includes a dishonorable or bad-conduct discharge, confinement, or hard labor without confinement, reduces that member to pay grade E-1, effective on the date of that approval.
 
	e.  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 Army Board for Correction of Military Records 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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations.  Therefore, there is no legal basis for granting the applicant's requested relief.

3.  The applicant's argument that his discharge should be upgraded because the “court” was found “negligent in issuing punishment that was never authorized” is without foundation.  While the court-martial authority failed to specifically approve or disapprove the applicant’s reduction as part of his court-martial sentence, there were other vehicles which authorized the reduction of an individual being discharged as a result of a court-martial sentence which included a punitive discharge or confinement.  In the applicant’s case his reduction to pay grade E-1 was appropriate and the “error” rectified by the United States Court of Appeals for the Armed Forces does not serve as a basis to warrant upgrading of the applicant’s discharge.

4.  The evidence of record fails to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090019469



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ABCMR Record of Proceedings (cont)                                         AR20090019469



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