IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015735 


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, in effect, upgrade of his bad conduct discharge to a general discharge.

2.  The applicant states there were many discrepancies in his case and he wants this Board to relook his court-martial conviction.  There was a good reason for him going absent without leave (AWOL).  He was sentenced to 10 months of confinement for 3 months of AWOL.  The punishment was extreme.  The only reason he went AWOL was because he did not receive appropriate medical attention.  Additionally, some witnesses lied on the stand under oath during his court-martial.  The character of service he received is hindering him from receiving medical benefits through the Department of Veterans Affairs.  He really needs help.

3.  The applicant did not provide any additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on
21 November 2005 for a period of 4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).

2.  He was assigned to the 3rd Battalion, 69th Armor, Fort Stewart, GA, and he attained the rank/grade of private first class (PFC)/E-3.

3.  On 1 May 2007, he departed his unit in an AWOL status and on 31 May 2007, he was dropped from the rolls (DFR) of the Army.  He surrendered to military control at Fort Stewart on 3 August 2007.

4.  On 16 January 2008, he was convicted by a general court-martial of one specification of being AWOL from 1 May 2007 to 3 August 2007, one specification of being disrespectful in language toward a commissioned officer, and one specification of being disrespectful in language toward a noncommissioned officer.  The court-martial sentenced him to a reduction to the lowest enlisted grade, confinement for 10 months, and a bad conduct discharge.

5.  On 16 May 2008, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.

6.  On 26 September 2008, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

7.  On 11 February 2009, the U.S. Court of Appeals for the Armed Forces denied his petition for a grant of review.

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 38, dated 26 February 2009, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge be duly executed.

9.  Accordingly, he was discharged from the Army on 10 April 2009.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation
635-200, chapter 3, as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 2 years,
4 months, and 26 days of total active service with 360 days of time lost.

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 departed his unit in an AWOL status.  Upon his return to military control, he appeared before a court-martial and he was sentenced to a reduction, confinement, and a bad conduct discharge.  His trial by a general court-martial was warranted by the gravity of the offense 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.

2.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant did not provide evidence to support his claim of a medical condition.  Furthermore, witness credibility is an issue that should have been conclusively adjudicated during the court-martial process.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

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 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 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)                                         AR20100015735



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ABCMR Record of Proceedings (cont)                                         AR20100015735



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