IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000596 


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 to an honorable discharge.

2.  The applicant states he is sorry for his actions.  He was coming back from his second deployment to Iraq and was getting ready for a third deployment.  He wanted to spend time with his family.  He lost his mother right before he got to his first duty station at Fort Campbell, KY.  He had also requested 30 days of leave but he was told by his chain of command he had to earn it and he was given
14 days instead.  This made him mad and instead of talking to his supervisor about it, he took the whole month off.   He adds that he was going to turn himself in but he was apprehended in Atlanta, GA and tried to tell his story but no one would believe him.  He knows what he did was wrong and feels he deserves a second chance to serve his country.  He let his feelings get the best of him but he is now ready to reenter the Army to prove he is a Soldier and is ready for the challenge. 

3.  The applicant did not provide any additional documentary evidence. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 29 January 2003.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 92G (Food Service Specialist).

2.  He was awarded the National Defense Service Medal and the Army Service Ribbon and he attained the rank/grade of specialist (SPC)/E-4.  He was assigned to the 1st Battalion, 5th Special Forces Group, Fort Campbell, KY.

3.  On 11 January 2006, he pled guilty at a special court-martial to one specification of being absent without leave (AWOL) from on or about 12 April 2005 to on or about 22 October 2005.  He was sentenced to reduction to private (PV1)/E-1, confinement for 84 days, and a bad conduct discharge.

4.  On 28 April 2006, the convening authority disapproved the applicant's request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, discharge in lieu of trial by court-martial.  His court-martial sentence was subsequently approved and he was credited with 84 days of confinement toward his sentence to confinement.

5.  On 20 July 2006, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 47, dated 6 March 2007, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

7.  Accordingly, he was discharged from the Army on 29 June 2007.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 7 months, and 29 days of creditable military service with 281 days of time lost.

8.  On 12 January 2009, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged and denied his request for a change in the character and/or reason for his discharge.

9.  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.
10.  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.  

11.  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 his bad conduct discharge should be upgraded.

2.  The applicant departed his unit in an AWOL status.  Upon his return to military control, he was court-martialed and sentenced to a reduction, confinement, and a bad conduct discharge.  It appears that he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial; however, the convening authority disapproved his request and approved the court-martial sentence. 

3.  The evidence of record shows his trial by a special court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

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.  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.

5.  The ABCMR does not does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  After a review of his service record, it is clear that his service did not meet the criteria for a general or an honorable discharge.
6.  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, 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.



      __________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)                                         AR20100000596



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         A