IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20090021821 


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 a general discharge (GD).

2.  The applicant states:

* when he was in the Army he made a terrible mistake
* he disgraced his country and himself by going absent without leave (AWOL) and has had to live with his decision
* he turned himself in to his unit and waived every right he had in regards to being a Soldier facing a court-martial
* he pled guilty and served his time without one disciplinary report filled out against him
* he has been a contributing member of society since his discharge
* he is a member of his city's volunteer fire department and he is going back to school
* he hopes his discharge will be upgraded in order to give him the best chance possible to serve and to protect his community

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

CONSIDERATION OF EVIDENCE:

1.  On 6 April 2004, the applicant enlisted in the Regular Army for 4 years, in the pay grade of E-2.  He successfully completed training in military occupational specialty 68W (health care specialist).  He was advanced through the ranks to the pay grade of E-4.

2.  On 20 February 2007, the applicant was convicted, pursuant to his pleas, by a general court-martial of the following:

* being AWOL from on or about 13 June 2006 until on or about 5 December 2006
* through design, miss movement, which he was required in the course of duty to move

3.  He was sentence included:

* discharge from the Army with a BCD
* confinement for 10 months
* reduction to the pay grade of E-1
* forfeiture of all pay and allowances

4.  The convening authority approved the sentence as adjudged and except for that portion of the sentence extending to a BCD, he ordered the sentence executed.  The United States Army Court of Criminal Appeals subsequently affirmed the findings and sentence.  The United States Court of Appeals for the Armed Forces denied his petition for review on 27 November 2007.

5.  On 23 January 2008, the general court-martial convening authority ordered the BCD executed.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to the applicant shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, with a BCD, as a result of a duly reviewed and affirmed general court-martial conviction.  He had completed 2 years, 11 months, and 2 days of net active service this period and he had 1 year, 1 month, and 14 days of time lost due to AWOL and confinement.

6.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 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 duly executed.

8.  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 BCD should be upgraded to a GD.

2.  His contentions have been considered; however, his records do not show that he served under honorable conditions.

3.  The applicant's records show that he was convicted by a general court-martial for missing movement and for being AWOL for over 5 months.  Considering the nature of his offenses, his BCD appropriately characterizes his overall record of service.

4.  The applicant is commended for his post-service conduct.  However, it is not sufficiently mitigating to warrant and upgrade of his BCD to a GD.

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.

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)                                         AR20090021821



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ABCMR Record of Proceedings (cont)                                         AR20090021821



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