IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090019909 


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 bad conduct discharge (BCD) to a general under honorable conditions discharge.

2.  The applicant states he believes his discharge was inequitable because it was based on one isolated incident that happened in the 84 months that he was in the Army.  Circumstances arose with his family that he could not control.  His family issues are now resolved and he wants to be allowed to enlist in the Army.  He cannot enlist with a BCD.  He served in his time and since being released from confinement in July 2008, he has had plenty of time to think about his life and who he is.  He knows the mistakes he made and now feels he is a better person; therefore, he can be a better Soldier.

3.  The applicant provides no additional documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  His military records show he enlisted in the Regular Army in pay grade E-4 on 10 May 2002 with prior enlisted service in the Army National Guard.  He served in military occupational specialty 11B (Infantryman).  He reenlisted in the Regular Army in pay grade E-4 on 11 May 2004 for 6 years.

2.  On 8 February 2008, he was convicted pursuant to his pleas by a general court-martial of one specification of desertion from 27 August 2007 through 10 October 2007.  He was sentenced to be reduced to pay grade E-1, confinement for 6 months, and to be discharged from the service with a BCD.  The sentence was adjudged on 8 February 2008.  The sentence was ultimately approved and, except for the sentence to a BCD, ordered executed.

3.  On 21 February 2008, the Installation Commander, Fort Stewart, disapproved the applicant's request to defer the adjudged reduction in grade and approved the waiver of the automatic forfeitures of all pay and allowances and ordered those forfeitures be paid to his spouse.

4.  There is no evidence he submitted a petition to the U.S. Court of Appeals for the Armed Forces for a review of his conviction.

5.  General Court-Martial Order Number 9, dated 8 January 2009, published by the U.S. Army Armored Center and Fort Knox, Kentucky, approved the sentence and ordered his BCD duly executed.

6.  He was discharged on 10 April 2009 in pay grade E-1 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial.  He was issued a BCD.  He was credited with 6 years, 4 months, and 21 days of net active service and lost time from 27 August 2007 through 10 October 2007 and 8 February 2008 through 3 July 2008 due to AWOL and confinement.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provides that a Soldier will be given a BCD 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.

8.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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 separation specifically allows such characterization.

9.  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 change a discharge due to matters which should have been raised in the appellate process, 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, he must show to the satisfaction of the Board or it must otherwise appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy this requirement.

2.  The evidence of record shows he was convicted pursuant to his guilty pleas by a general court-martial adjudged on 8 February 2008.  He was sentenced to reduction in grade, 6 months in confinement, and a BCD.  He was released from confinement on 4 July 2008 and discharged on 10 April 2009 pursuant to the approved sentence of a general court-martial.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  He provided no evidence to show his discharge was unjust at the time of his offense.  There is no error or injustice in his record.  He provided no evidence or argument to show his discharge should be upgraded.  He was properly discharged in accordance with pertinent regulations with due process.

4.  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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the circumstances in this case, he is not entitled to an upgrade of his BCD.  He has not shown error, injustice, or inequity for the relief he now requests.

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)                                         AR20090019909



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ABCMR Record of Proceedings (cont)                                         AR20090019909



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