IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014413 


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 upgrade of his general, under honorable conditions discharge to an honorable discharge.

2.  He states, in effect, he wants his discharge upgraded so he can receive medical care, compensation, and treatment.

3.  He provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that he enlisted in the Regular Army on 
9 February 1993.

2.  His record contains a DA Form 2173 (Line of Duty) dated 25 May 1994 which shows he was injured in a motor vehicle accident which resulted in a muscle spasm.

3.  On 7 March 1995, he was found guilty at a special court-martial (SPCM) of:

* two specifications of using disrespectful language towards a noncommissioned officer (NCO)
* two specifications of willfully disobeying a lawful order from an NCO
* making a false official statement
* 
wrongfully using marijuana
* willfully and unlawfully altering a public record

4.  On 6 June 1995, sentence was adjudged.  The applicant was sentenced to be reduced to private (PV1)/E-1, to be confined for 4 months, and to be discharged with a bad conduct discharge (BCD).  The sentence was approved and except for that part of the sentence extending to the BCD was executed.  The convening authority approved the sentence and after appellate review, directed the execution of the discharge.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 28 January 1997, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, by reason of court-martial, with a reentry eligibility (RE) code of 4.  The
DD Form 214 he was issued at the time confirms he had completed 3 years,
8 months, and 28 days of total active service.  The DD Form 214 also shows his character of service was bad conduct.  The applicant's medical records are unavailable for review.

6.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge from a BCD to a general, under honorable conditions discharge.  He stated that he served over 180 days of active duty and his medical records show that he was clearly injured before being discharged.

7.  On 16 February 2010, the ADRB reviewed the applicant's petition for an upgrade of his general discharge.  After a careful review of the applicant’s military records the analyst found several mitigating factors that merited an upgrade of his characterization of service to general, under honorable conditions. There was full consideration of all faithful and honest service as well as the incidents of misconduct.  The evidence of record indicated that the applicant was adjudged guilty by court-martial and the convening authority approved the sentence.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The ADRB is empowered to change the characterization of the discharge 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.  The analyst carefully reviewed the applicant's military record and found that clemency was warranted based on the applicant's length of service and the circumstances (short time span) and nature of service surrounding the discharge.  Accordingly, the ADRB voted to upgrade the applicant's characterization of service to general under honorable conditions.

8.  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 change a discharge due to matters which should have been raised in the appellate process, 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.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 (Character of Service/Description of Separation) provides that a discharge certificate or a DD Form 214 will be given to each Soldier of the Army upon discharge from the Service or release from active duty. Paragraph 3-11 (Bad conduct discharge) 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 3-7a, 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.

11.  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's record reveals a pattern of indiscipline culminating in his trial by special court-martial which 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 the applicant was convicted.

2.  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, his record of service was not considered sufficiently meritorious to warrant further clemency.

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)                                         AR20100014413



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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