BOARD DATE: 3 August 2010
DOCKET NUMBER: AR20100000397
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 request his bad conduct discharge (BCD) be upgraded to honorable.
2. The applicant states he served his punishment and he would like to show himself and the United States that there is room for rehabilitation and you do learn from your mistakes.
3. The applicant provides no additional documents in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's record shows he enlisted in the Regular Army on 19 August 2002.
2. Headquarters, 82nd Airborne Division, General Court-Martial Order Number 10, dated 9 March 2007, shows the applicant was convicted by a general court-martial and found guilty of Article 112a of the Uniform Code of Military Justice for wrongfully introducing approximately 65.5 grams of marijuana and approximately 2.8 grams of cocaine onto a military installation with the intent to distribute. His sentence consisted of confinement for 4 years, reduction to the grade of private/E-1, and a BCD. The sentence was adjudged on 16 November 2006.
3. On 6 September 2007, the U.S. Army Court of Criminal Appeals, on consideration of the entire record including consideration of the issues personally specified by the applicant, found the findings of guilty and the sentence approved by the convening authority correct in law and fact. Those findings of guilty and the sentence were affirmed.
4. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a character of service shown as bad conduct on 27 June 2008. The authority and reason are shown as chapter 3, Army Regulation 635-200. The applicant had completed 3 years, 8 months, and 6 days of total active service with the period from 25 April 2006 to 27 June 2008 recorded as lost time.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and, the appellate review must be completed and the affirmed sentence must be ordered duly executed.
6. Army Regulation 635-200, 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.
7. 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.
8. Court-martial convictions stand as adjudged or as 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 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 evidence of record shows the applicant was convicted by a general court-martial and the findings and sentence were affirmed by the U.S. Army Court of Criminal Appeals. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed by the court-martial. After a thorough review of the applicant's record and issues, the Board found no basis for granting clemency in this case.
2. 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.
3. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20100000397
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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