BOARD DATE:	  18 November 2010

		DOCKET NUMBER:  AR20100012000 


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. 

2.  The applicant states, in effect, he has been on excess leave pending an appellate review for 10 years and he has not received his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He states he was given a bad conduct discharge but he is not sure the convening authority made a final decision on his case.  His discharge should be upgraded due to the amount of time it has taken.  He was young, newly married, and he was suffering from stress due to marriage at the time.  His unit would not discharge him in lieu of a court-martial.  He was mentally ill and he was placed in a hospital.  But his company commander refused to sign off on a chapter 10.  His company commander was new and made a statement during unit formation wherein he stated "this is what happens if you beat your wife."  He was trying to make him an example.  He adds that he made a bad choice by pulling his wife's hair during an argument but he never struck her.  His wife even refused to make a statement against him.  

3.  The applicant provides a medical document.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 6 January 1981 and enlisted in the Regular Army at the age of 18 on 13 September 1999.  He held military occupational specialty 19K (M-1 Armor Crewmember) and he was assigned to the 2nd Battalion, 12th Cavalry, Fort Hood, TX.
2.  On 8 August 2001, he was convicted by a general court-martial of one specification of unlawfully pulling the hair of a woman with his hand, one specification of communicating a threat to kill a sergeant, one specification of communicating a threat to beat a sergeant, one specification of communicating a threat to kill a woman, one specification of communicating a threat to kill an officer, and one specification of disobeying an order.  The court sentenced him to be reduced to the grade of private/E-1, a forfeiture of all pay and allowances, confinement for 10 months, and a bad conduct discharge. 

3.  On 14 March 2002, the convening authority approved a lesser sentence of reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for 5 months, and a bad conduct discharge.  Additionally, except for the bad conduct discharge, the sentence was ordered executed.  

4.  On 23 September 2005, the U.S. Army Court of Criminal Appeals ordered the action taken by the general court-martial that was adjudged on 8 August 2001 set aside and ordered a new review and action by the convening authority.  The case was returned to the convening authority for a new post-trial action.

5.  On 24 March 2006, the new convening authority, having been designated as the convening authority to take action in this case, approved only so much of the sentence as provided for a reduction to the lowest enlisted grade, confinement for 5 months, and a bad conduct discharge.  Additionally, except for the bad conduct discharge, he ordered the sentence executed and credited the applicant with 77 days of confinement against his sentence to confinement.  

6.  On 8 August 2006, the U.S. Army Court of Criminal Appeals considered the entire record, including the issues specified by the applicant, and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence were affirmed.  

7.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 5, dated 2 February 2007, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

8.  Accordingly, the applicant was discharged from the Army on 28 September 2007.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial.  This form further shows his character of service as bad conduct and that he completed 7 years, 9 months, and 25 days of creditable military service.  He also had 82 days of lost time and 2,161 days of excess leave.  This form also indicated the applicant was unavailable to sign.

9.  The applicant submitted a medical document, dated 25 October 2005, that shows he had bipolar disorder, first observed on 31 January 2001, and an antisocial personality disorder, first observed on 16 February 2005. 

10.  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.

11.  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.  

12.  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 available evidence shows the applicant was 18 years of age when he enlisted and 20 years of age at the time he committed his various offenses.  However, there is no indication that his misconduct resulted from his age or that he was any less mature than other Soldiers of the same age who successfully completed their military service.


3.  The available evidence also shows his trial by a general 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 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 punishment 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 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.  A copy of his DD Form 214 will be mailed to him.

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)                                         AR20100012000



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ABCMR Record of Proceedings (cont)                                         AR20100012000



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