BOARD DATE: 29 July 2010
DOCKET NUMBER: AR20100001097
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 be changed to an uncharacterized discharge.
2. The applicant states, in effect, the request is based on injuries sustained while in Iraq and for medical compensation and a Department of Veterans Affairs (VA) identification card.
3. The applicant provides no additional documentation in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the U.S. Army Reserve (USAR) on 11 October 2000 and upon completion of initial entry training he was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). He was discharged from the USAR and he enlisted in the Regular Army (RA) on
4 February 2002 for 3 years. On 14 October 2005, he reenlisted in the RA for
4 years.
2. On 5 January 2007, the applicant was found guilty by a general court-martial of committing the offense of carnal knowledge and sodomy with Ms. J.L.S., a child under the age of 16, unlawfully touching Ms. N.R. on her body by climbing on top of her, disorderly conduct, and breaking restriction. He was sentenced to
be discharged from the service with a bad conduct discharge and confinement for 18 months. On 17 July 2007, the sentence was approved. The sentence having been affirmed pursuant to Article 71c, the bad conduct discharge was ordered executed.
3. Accordingly, the applicant was discharged on 28 August 2009, under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial with a bad conduct discharge.
4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge. It stipulates, that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.
5. Army Regulation 635-200, chapter 11 of this regulation, provides for the separation of personnel due to unsatisfactory performance and/or conduct while in an entry level status. This provision of regulation applies to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life; because they lacked the aptitude, ability, motivation, or self discipline for military service; or they had demonstrated characteristics not compatible with satisfactory continued service. The separation policy applies to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. It also applies to Soldiers who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty and demonstrated that they could not or would not adapt socially or emotionally to military life.
6. Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.
7. 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 request that his discharge be changed to an uncharacterized discharge has been carefully reviewed.
2. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
2. Trial by 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 final discharge appropriately characterized the misconduct for which the applicant was convicted.
3. The applicant is not entitled to a character of service of uncharacterized. This characterization is reserved for Soldiers discharged while in an entry level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. The applicant was had well over 180 days of active service when he was sentenced to a bad conduct discharge as a result of a court-martial. Therefore, he is not entitled to an uncharacterized characterization of service.
3. The ABCMR does not change of discharges based solely for the purpose of establishing eligibility for benefits from another agency. The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.
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. In view of the above, 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) AR20100001097
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) ARMY | BCMR | CY2009 | 20090015944
The DD Form 214 the applicant was issued shows she completed 3 years and 6 days of active military service. Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. While the applicant indicates evidence of insanity as justification of her request, there is no evidence that she raised this issue at the time of her trial or appellate review.
ARMY | BCMR | CY2002 | 2002077819C070215
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant requests correction of military records as stated in the application to the Board and as restated herein. The Board considered the applicant’s request that his bad conduct discharge be changed to entry level separation or uncharacterized.
ARMY | BCMR | CY2011 | 20110024903
The applicant requests upgrade of his bad conduct discharge (BCD) to a general discharge or change his character of service to uncharacterized. His service record is void of evidence that indicates he was diagnosed with paranoid schizophrenia or that he underwent a psychiatric evaluation while on active duty. Although the applicant contends that his misconduct was due to paranoid schizophrenia, his service record is void of evidence indicating he was diagnosed with this mental condition...
ARMY | BCMR | CY2008 | 20080018215
The applicant requests, in effect, that his bad conduct discharge be upgraded. Army Regulation 635-204 (Personnel Separations Dishonorable and Bad-Conduct Discharge), in effect at the time, set forth the basic authority for the separation of enlisted personnel with dishonorable and bad conduct discharges. Evidence shows that although the applicant enlisted for a 3 year period, he only served 50 days of military service.
ARMY | BCMR | CY2009 | 20090015324
He was discharged from the Army on 18 October 1993. The available evidence does not show the applicant suffered from PTSD, stress, or any medical condition. There is no evidence in his available records and he did not provide any evidence that shows he suffered from PTSD or any other medical condition subsequent to his service in Southwest Asia or that such service caused him to use cocaine on two occasions.
ARMY | BCMR | CY2010 | 20100015966
The applicant requests an upgrade of his bad conduct discharge to an honorable discharge. The applicant provides the following: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 18 May 2010 * unofficial-student copy of transcript from the Office of the Registrar, State University of New York Maritime College * employment candidate notification of examination results from the New York State Office of Mental Health * certificate of...
ARMY | BCMR | CY2010 | 20100012766
On 9 October 1992, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, by reason of as a result of court-martial, other. 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. The evidence of record shows the applicant was convicted by an SPCM and he received a bad conduct discharge.
ARMY | BCMR | CY2012 | 20120011501
The applicant requests his bad conduct discharge be upgraded to an honorable discharge. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Based on the foregoing, there is an insufficient basis to upgrade his bad conduct discharge to an honorable discharge or to a general discharge under honorable conditions.
ARMY | DRB | CY2013 | AR20130010978
IN THE CASE OF: Mr. BOARD DATE: 5 March 2014 CASE NUMBER: AR20130010978 ___________________________________________________________________________ Board Determination and Directed Action After carefully examining the applicants record of service during the period of enlistment under review and considering the Discussion and Recommendation which follows, the Board found no cause for clemency and voted to deny relief. The record shows that on 3 September 2009, the applicant was found guilty...
ARMY | BCMR | CY2009 | 20090021438
The applicant requests that his bad conduct discharge be upgraded to a general, under honorable conditions discharge and that the reason for his separation be changed. Accordingly, the applicant was discharged on 15 November 1993, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, by reason of court-martial with a bad conduct discharge. Conviction and discharge were effected in accordance with applicable law and regulations and the final discharge...