BOARD DATE:	 10 June 2010 

		DOCKET NUMBER:  AR20090021707 


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.  

2.  The applicant states he made a mistake and he has learned from it.  He was young and immature.  However, he served his country honorably and he should be treated as such.  The charge that led to his court-martial was not a habitual thing.  He is now a changed person with a family of his own.  He would like to access the Department of Veterans Affairs resources to take care of his family.  

3.  The applicant provides a copy of his Honorable Discharge Certificate, dated 11 October 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 5 January 2004 and held military occupational specialty 19K (M-1 Tank Armor Crewman).  He also received an Honorable Discharge Certificate on 11 October 2006 and executed a 4-year reenlistment in the RA on 12 October 2006.  

2.  His records further show he was awarded the National Defense Service Medal and Army Service Ribbon and attained the rank/grade of specialist/E-4.  He was assigned to the 2nd Battalion, 69th Armor, Fort Benning, GA.



3.  On 26 March 2007, he pled guilty at a general court-martial to five specifications of stealing cash in various amounts from several establishments on divers dates.  The court sentenced him to confinement for 8 months, reduction to private (PVT)/E-1, and a bad conduct discharge.  

4.  On 27 June 2007, the convening authority approved so much of the sentence as provided for reduction to PVT/E-1, confinement for 5 months, and a bad conduct discharge.  Additionally, the convening authority ordered the service of the sentence to confinement deferred effective 26 March, and the deferment ended on 4 April 2007 (credited with 10 days in confinement), and except for that portion of the sentence extending to a bad conduct discharge, ordered the sentence executed.

5.  On 10 December 2007, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 28, dated 6 February 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

7.  The applicant was discharged from the Army on 25 July 2008.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200, as a result of court-martial with a bad conduct discharge.  He completed 4 years, 2 months, and 20 days of creditable military service and he had 123 days of lost time.

8.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (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.

9.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 clearly inappropriate.  
10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded.

2.  The evidence of record shows the applicant’s trial by general court-martial was warranted by the gravity of the offenses charged.  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.  The ABCMR 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.

3.  After a review of his entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.  Therefore, he is not entitled to either an honorable or 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)                                         AR20090021707



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ABCMR Record of Proceedings (cont)                                         AR20090021707



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