IN THE CASE OF:	

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20090021203 


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 an upgrade of his bad conduct discharge (BCD) to honorable.

2.  The applicant states he loves the U.S. Army and hopes to one day serve proudly again for his country.  He believes he will be of great service to his country due to the training he received during his time at Fort Benning, Georgia.  He asks the Board not to judge him by this one mistake; he is more than this one grievous error that he made.  He would like the Board to read all the good things his chain of command said about him when he went to court; that is who he is.  Even though he was going through this, he still continued to Soldier on.  One week prior to his court-martial, he was able to win top gun for the whole battalion and because of his efforts he was able to get his entire crew awarded Army Commendation Medals.  He does not want his son to grow up knowing his father was kicked out of the Army.  During the time he was out of the military he saved a child's life who had drowned at the pool.  He performed cardiopulmonary resuscitation on the little boy (see enclosed police report).  He is asking the Board to change his discharge so he can reenter the Army.

3.  The applicant provides copies of two request for clemency memoranda and a Columbus Police Department Incident Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army in pay grade E-3 on 11 December 2001 for 3 years.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He was promoted to pay grade E-4 on 1 February 2003.  He reenlisted in the Regular Army in pay grade E-4 on 11 March 2004 for 6 years.

2.  On 15 June 2005, the applicant was notified by his unit commander of his intention to disqualify him for the Army Good Conduct Medal award for the period 11 December 2001 through 10 December 2004.

3.  On 15 August 2005, the applicant was convicted pursuant to his pleas by a special court-martial of one specification of willfully and wrongfully damaging the property of another service member by firing .40 caliber bullet holes into a privately-owned vehicle on 30 October 2004 and one specification of willfully and wrongfully discharging four shots from a .40 caliber pistol into a vehicle under circumstances such as to endanger life on 30 October 2004.  He was sentenced to be reduced to pay grade E-1, confinement for 90 days, and to be discharged from the service with a BCD.  The sentence was adjudged on 15 August 2005.  The sentence was ultimately approved and, except for the sentence to a BCD, ordered executed.

4.  In a request for clemency memorandum, dated 29 November 2005, the applicant's counsel requested clemency and disapproval of the BCD.  Counsel stated the applicant pled guilty pursuant to pretrial agreement and took responsibility for his actions.  As the Staff Judge Advocate mentioned in his recommendation, the applicant had no previous civilian or military convictions.  During his court-martial, three of his superiors testified on his behalf.  The applicant's supervisor testified he had been and continued to be an outstanding Soldier in his unit.  According to the applicant's supervisor, he actually shot more distinguished gunneries than anybody else in the platoon.  At trial, the applicant's prior commander testified that 7 to 8 months leading to his court-martial, he pretty well stayed the course and continued to Soldier on as directed.  These witnesses all testified that they would gladly serve with the applicant in the future. They all believed he had rehabilitative potential and recommended he be retained.  Counsel also stated the applicant had a very difficult life and did not know or had ever met any of his maternal relatives.  At age 5, he lost total contact with his mother after his parent's divorce.  He later learned of her death through the social security death index in 1995.  Three years later his father died of a heroin overdose.  The applicant was 21 years of age at the time.  He also lost both of his only grandparents.  Despite all these tragedies, he turned out to become a productive member of society but for this single critical mistake in his life.  He knows he made a big mistake in firing his weapon into the trunk of an unmanned vehicle and is deeply sorry.

5.  In a request for clemency, dated 1 December 2005, the applicant's company commander highly recommended he be retained in the Army.  The company commander stated the applicant was an outstanding Solider and subject matter expert and taught classes on the Bradley Fighting Vehicle.  He was also the best gunner in the company, had great military bearing, and respect for the noncommissioned officers and the chain of command.  He believed the applicant had rehabilitative potential.  In his opinion, it would be a loss if the applicant was separated from the Army due to the wealth of knowledge he possessed on the ODS and A3 Bradley Fighting Vehicles.

6.  On 10 April 2006, the U.S. Army Court of Criminal Appeals approved the findings of guilty and found the sentence correct in law and fact and affirmed the sentence.

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

8.  Special Court-Martial Order Number 84, dated 7 June 2007, published by the U.S. Army Armor Center and Fort Knox, Kentucky, approved the sentence and ordered his BCD duly executed.

9.  The applicant was discharged on 26 October 2007 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 5 years, 8 months, and 1 day of net active service and lost time from 15 August 2005 to 29 October 2005 due to confinement.

10.  The applicant submitted a copy of a Columbus Police Department Incident Report, dated 10 June 2009, that shows he pulled an unconscious 8-year old boy from a swimming pool, performed cardiopulmonary resuscitation on him, and managed to revive him.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7a, defines an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

13.  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, the applicant 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 the applicant was convicted pursuant to his guilty pleas by a special court-martial adjudged on 15 August 2005 and discharged on 26 October 2007 pursuant to the approved sentence of a special court-martial.  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 and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  The documents submitted by the applicant have been considered; however, they do not support a change to his BCD.  There is 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, the applicant 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)                                         AR20090021203



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ABCMR Record of Proceedings (cont)                                         AR20090021203


   
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