BOARD DATE:	  7 December 2010

		DOCKET NUMBER:  AR20100013027 


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 reconsideration of an earlier request to upgrade his bad conduct discharge to a general discharge.

2.  The applicant states:

* His discharge was inequitable since it was based on one isolated incident with no other adverse actions
* The discharge took place over ten years ago
* He has moved on with his life and would like to move past this incident
* He served honorably for two years in the Army
* The charges against him involved being an accessory after the fact to murder and an accessory after the fact to assault
* He believes the charges brought against him were not proper
* While he admits he was present on the night of the incident he does not believe he should be held accountable for someone else's actions
* He was very young when this incident occurred
* He honestly did not think anyone was hurt and if he had known the victim had been injured he would have helped him
* After his discharge he relocated to Mississippi and was hired as a patrol officer; however, he was let go from the police department because of his discharge
* The bad conduct discharge prevents him from obtaining employment
* He has done everything he can to be a productive and outstanding citizen  


3.  The applicant provides:

* a letter, dated 18 March 2010, from his attorney
* Brief in support of his discharge upgrade, dated 16 March 2010
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 28 December 2009, with 16 exhibits 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090011704, on 14 January 2010.

2.  Records show the applicant's DD Form 293, dated 28 December 2009, was letter closed without action by the Board on 19 January 2010 based on the pending decision of his previous application.

3.  The applicant's brief, dated 16 March 2010, and his DD Form 293 with 
16 exhibits are new evidence which were not previously considered and warrant consideration by this Board.

4.  The applicant was born on 6 December 1975.  He enlisted in the Regular Army on 16 August 1994.  He was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He attained the rank/grade of specialist four (SP4)/E-4.

5.  On 29 July 1997, the applicant was convicted by a general court martial of assault with a means or force to produce grievous bodily harm; being an accessory after the fact to a murder, in order to prevent the apprehension of another Soldier; and for being an accessory after the fact of an assault with force to produce death or grievous bodily harm, in order to prevent the apprehension of another Soldier.  The sentence imposed was a forfeiture of $500.00 pay for
36 months, reduction to private (PV1)/E-1, confinement for 3 years, and a bad conduct discharge.  On 25 September 1997, the convening authority approved only so much of the sentence that provided for a reduction to PV1/E-1, forfeiture of $500.00 pay per month for 30 months, confinement for 30 months, and a bad conduct discharge. 
 
6.  On 10 March 1999, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

7.  On 28 March 2000, the convening authority ordered the bad conduct discharge to be executed.

8.  Accordingly, the applicant was discharged with a bad conduct discharge on 24 August 2000 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial.  He had served a total of 4 years, 11 months, and 7 days of total active service with time lost due to confinement.

9.  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.

10.  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.

11.  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 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 contention thast the charges brought against him were not proper relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.  The ABCMR may not upset the finality of a court-martial conviction and must limit its consideration to issues surrounding the fairness or equity of the sentence.  

2.  Age is not a sufficiently mitigating factor.  The applicant was almost 19 years old when he enlisted.  In addition, he served almost 3 years prior to his general court-martial.
3.  It is acknowledged that a bad conduct discharge may cause limitations on a Soldier's employability; however, the Board does not upgrade a discharge for the sole purpose of enhancing employment opportunities.

4.  The applicant is commended for his post-service achievements and efforts to overcome his conviction; however, good post-service conduct and the passage of time are normally not a sufficient basis for upgrading a discharge.

5.  The trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

6.  The applicant's contentions were carefully considered.  However, his record of service included one general court-martial conviction for serious offenses (assault with a means or force to produce grievous bodily harm; being an accessory after the fact to a murder, in order to prevent the apprehension of another Soldier; and for being an accessory after the fact of an assault with force to produce death or grievous bodily harm, in order to prevent the apprehension of another Soldier).  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.

7.  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.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090011704, dated 14 January 2010.



      ___________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)                                         AR20100013027



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ABCMR Record of Proceedings (cont)                                         AR20100013027



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