IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007530 


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

2.  The applicant states that:

* in the 4 years since he was discharged, he attained his Associates of Science degree in Administration and Justice and graduated from the police academy as class president
* because of the BCD he received, he has been unable to secure employment in law enforcement
* he was rehabilitated through confinement
* what he did was morally and ethically wrong

3.  The applicant provides an Associate degree diploma and a certificate of achievement in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he initially enlisted in the California Army National Guard (CAARNG) on 30 April 1999.  He was trained in and served in military occupational specialty (MOS) 11B (Infantryman).

2.  On 27 July 2003, the applicant was ordered to and entered active duty as a member of the Army National Guard of the United States (ARNGUS) in support of Operation Iraqi Freedom (OIF).
3.  On 11 September 2005, while serving in the rank of sergeant/E-5, a special court-martial (SPCM) found the applicant guilty of violating Article 92 (two specifications of being derelict in the performance of his duties) and Article 93 (two specifications of maltreating Iraqi detainees) of the Uniform Code of Military Justice (UCMJ).  He was found not guilty of violating Article 128 (two specifications of unlawfully striking Iraqi detainees).  The resultant sentence was a reduction to the rank of private (PVT/E-1), forfeiture of $823.00 pay per month for 6 months, confinement for 6 months, and a BCD.  The convening authority approved the sentence.

4.  On 29 December 2006, the United States Army Court of Criminal Appeals affirmed the findings and sentence.

5.  On 21 June 2007, in Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, SPCM Order Number 80, Article 71(c) of the UCMJ having been complied with, it was directed that the BCD portion of the sentence be duly executed.  On 17 August 2007, the applicant was discharged accordingly.

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed 2 years, 4 months, and 26 days of creditable active military service during the period it covered.  It also shows he was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), by reason of "court-martial, other" and that he received a BCD.

7.  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 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 affirmed before the BCD portion of the sentence is ordered 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.


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 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 contends his BCD should be upgraded to an GD.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's 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 expresses remorse and his post-service conduct, as described in his application, is admirable.  However, this does not sufficiently mitigate the serious criminal offenses that resulted in his court-martial conviction.  Therefore, given the gravity of the offense that resulted in his SPCM conviction and BCD, his overall record of service and post-service conduct are not sufficiently meritorious to support clemency in this case.

4.  Any redress by this BCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the absence of 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, the applicant's request should be denied.

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)                                         AR20100007530





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)