IN THE CASE OF:	  

		BOARD DATE:	      25 JUNE 2009

		DOCKET NUMBER:  AR20080019408 


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 that his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states that he would like the chance to fulfill his military obligation.  He states he had the opportunity to serve his country and he messed up once, but that's all it takes to learn.  He's learned, matured, and realizes that his mistakes have affected no one but himself.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army (RA) on
14 June 2005.  

3.  The applicant’s record contains a copy of Headquarters, United States Army Alaska, Fort Richardson, Alaska, General Court-Martial (GCM) Order Number 8, dated 5 April 2008, which documents the following charges for which he was found guilty:

   a.  Charge I in violation of Article 86, Uniform Code of Military Justice (UCMJ). In that on or about 18 November 2006, without authority the applicant absented himself from his unit and remained absent until 2 December 2006.
   b.  Charge II in violation of Article 112, UCMJ.  In that between 3 October and 1 December 2006, the applicant wrongfully distributed some amount of marijuana; in that between 3 October 2006 and 2 November 2006, the applicant wrongfully used marijuana; and in that on 1 December 2006, the applicant wrongfully used marijuana.

   c.  Additional Charge in violation of Article 92, UCMJ.  In that on 1 December 2006, the applicant violated a lawful general regulation by wrongfully carrying an unregistered firearm on the post main cantonment area of Fort Richardson.

4.  On 10 January 2007, sentence was adjudged.  The applicant was sentenced to be confined for a period of 21 months and to be discharged from the U.S. Army with a BCD.  (No previous convictions considered.)

5.  The GCM convening authority approved only so much of the sentence as provided for confinement for 8 months and a BCD, and that except for the part of the sentence extending to a BCD, ordered the sentence to be executed.  The GCM convening authority also directed that the record of trial be forwarded to the Judge Advocate General of the Army for review by a Court of Military Review and ordered the applicant be confined pending completion of the appellate review.

6.  The applicant’s record contains a copy of U.S. Army Field Artillery Center, Fort Sill, Oklahoma, GCM Order Number 19, dated 23 January 2008.  This document shows, in pertinent part, that the applicant's sentence was affirmed.  This document also shows that the provisions of Article 71(c) having been complied with and the applicant having served that portion of the sentence pertaining to confinement, the BCD was ordered duly executed.

7.  The applicant's DD Form 214 shows that he was discharged on 27 March 2008, under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), by reason of court-martial, with a reentry (RE) code of "4."  This document also shows the applicant's character of service as bad conduct.  At the time of his discharge the applicant had completed 2 years, 3 months, and 28 days of net active service.  This document further shows the applicant had time lost under Title 10, U.S. Code, section 972, from 14 November to 16 November 2006, 18 November to
1 December 2006, and from 10 January 2007 to 8 June 2007.

8.  Army Regulation 635-200, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 states that Soldiers will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.
9.  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.

10.  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 (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his BCD should be upgraded to a GD was carefully considered but found to be without merit.

2.  The evidence of record shows the applicant was convicted by a GCM and he received a BCD.  Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged.  The sentence is commensurate with the misconduct for which the applicant was convicted.  The applicant’s service was not sufficiently meritorious to warrant granting clemency. 

3.  After a thorough and comprehensive review of the applicant’s record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.

4.  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.  

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.  The applicant's available military record and documentation submitted with his application contain no matters upon which the Board may grant clemency and an upgrade of his bad conduct discharge.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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.



      ___________XXX_____________
                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)                                         AR20080019408



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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