BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100009495
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 be upgraded to a general discharge.
2. The applicant states:
* He has medical issues that require continued medical care and medications and the Department of Veterans Affairs (DVA) won't see him because of the bad conduct discharge
* His medical conditions (leg injury, high blood pressure, Post Traumatic Stress Disorder, and tumors in his lungs, liver and pancreas) are service related
* He had 10 years of good service with the military
* He wants his discharge upgraded so he can receive medical treatment from the DVA
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 enlisted in the Regular Army on 1 July 1998 for a period of
3 years. He trained as an infantryman. On 21 July 2000, he was honorably discharged for immediate reenlistment. He reenlisted on 22 July 2000 for a period of 3 years. He attained the rank of sergeant on 1 November 2001. On
22 July 2002, he was honorably discharged for immediate reenlistment. On
23 July 2002, he reenlisted for a period of 6 years. On 7 November 2006, he was honorably discharged for immediate reenlistment. On 8 November 2006, he reenlisted for a period of 6 years.
2. On 4 January 2008, the applicant was convicted by a general court-martial of conspiracy to burn an automobile with intent to defraud and burning an automobile with intent to defraud. He was sentenced to be reduced to pay grade E-1, to be confined for 24 months, to forfeit all pay and allowances, and to be discharged from the service with a bad conduct discharge. On 15 May 2008, the convening authority approved the sentence.
3. On 31 July 2008, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. On 3 November 2008, the U.S. Court of Appeals for the Armed Forces denied the applicant's petition for grant of review. On 20 November 2008, the convening authority ordered the bad conduct discharge to be executed.
4. Accordingly, the applicant was discharged with a bad conduct discharge on 16 January 2009 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He had served a total of 9 years, 6 months, and 3 days of creditable active service with 378 days of lost time.
5. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
6. 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.
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 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 ABCMR does not correct records solely for the purpose of making the applicant eligible for 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. The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
3. The applicant's prior honorable discharges were noted. However, his record of service during his last enlistment included one general court-martial conviction and 378 days of time lost. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
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) AR20100009495
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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