IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100012500 


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 upgraded to honorable.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in more than 165 months of service with no other adverse actions.  He feels that due to his rank at the time of the incident he was used as an example and was the one out of three individuals involved in the incident to receive a bad conduct discharge in addition to 6 months confinement.  He contends the bad conduct discharge, confinement, and loss rank was far and beyond a price to pay for the incident in which he participated.  He concludes that he cannot get his rank back and it is impossible to get back the 6 months of confinement he served but it is not impossible to have his discharge changed to reflect all the good he did as a Soldier of 4 years in the U.S. Army.

3.  The applicant provides no additional documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 October 1990 and upon completion of initial entry training was awarded military occupational specialty 92Y (Unit Supply Specialist).  He reenlisted in the Regular Army on 27 December 1994, 22 May 1997, and 9 June 1999.

2.  On 26 July 2003, he was found guilty by a general court-martial of wrongfully passing counterfeit currency of the U.S., stealing merchandise of a value of more than $500.00, property of the Army and Air Force Exchange Service, and conspiracy to commit larceny of a value of more than $500.00, property of the Army and Air Force Exchange Service, and in order to effect the conspiracy received counterfeit U.S. currency and exchanged said currency for merchandise with a value of more than $500.00.  He was sentenced to reduction to the rank of private/E-1, confinement for 6 months, and to be discharged from the U.S. Army with a bad conduct discharge.  The convening authority approved the sentence.

3.  The U.S. Army Court of Criminal Appeals modified the findings and affirmed the modified findings.  The court reassessed the sentence and affirmed the adjudged sentence.

4.  The sentence having been affirmed pursuant to Article 71c, the bad conduct discharge was ordered executed on 17 November 2006.

5.  Accordingly, he was discharged on 30 December 2008, 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.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was on excess leave from 6 November 2004 to 
30 December 2008. 

6.  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.

7.  Army Regulation 635-200 sets forth the basic authority for 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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 (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 contends that his bad conduct discharge should be upgraded because it was based on one isolated incident and the punishment was too harsh.

2.  His service prior to the court-martial conviction has been noted; however, 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.  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 seriousness of the applicant's criminal offenses and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  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)                                         AR20100012500



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ABCMR Record of Proceedings (cont)                                         AR20100012500



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