BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100018981 


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 his bad conduct discharge (BCD) be upgraded to under honorable conditions (general).

2.  He states while in the Army he did not avail himself to his full potential and did not make wise choices.  However, his experiences have caused him to realize the advantages he had while in the Army.

3.  He provides a self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 
16 September 2004.

2.  In May 2006, he was convicted by a general court-martial of the following offenses:

* Being absent without leave (AWOL) from 22 June to 5 August 2005
* Being AWOL from 3 November 2005 to 5 January 2006
* Stealing various organizational clothing and individual equipment, the property of the military, a value of more than $500.00
* Stealing a computer and electronic equipment, the property of a Noncommissioned Officer (NCO), a value of more than $500.00
* Stealing DVDs, property of an NCO, a value of more than $500.00
* Stealing a television and other electronic equipment, the property of a private first class, a value of more than $500.00
* Stealing DVDs, video games, and other electronic equipment, property of a private, a value of more than $500.00
* Stealing DVDs, a Play Station 2 Game Console, and video games, the property of a private, a value of more than $500.00
* Stealing a laptop computer and game consoles, the property of another, a value of more than $500.00
* Unlawfully entering the room of an NCO with the intent to commit a criminal offense, larceny
* Unlawfully entering the rooms of two privates, with the intent to commit a criminal offense, larceny

3.  On 23 May 2006, the court sentenced him to reduction to the grade of E-1, confinement for 42 months, and a BCD.  The U.S. Army Courts of Criminal Appeals affirmed the findings and the sentence on an unknown date.  The U.S. Court of Appeals for the Armed Forces denied his petition for review on 
20 August 2007.  The convening authority ordered the BCD executed on 
21 September 2007.

4.  His DD Form 214 shows he was discharged with a BCD on 29 January 2008. The authority and reason are shown as chapter 3, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  He had completed 1 year, 4 months, and 25 days of total active service.  He also had lost time from 
22 June to 30 July 2005, 3 November 2005 to 5 January 2006, and 23 May 2006 to 29 January 2008.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and, the appellate review must be completed and the affirmed sentence must be ordered duly executed.

6.  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.


7.  Court-martial convictions stand as adjudged or as 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 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 was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  Based on his overall record of indiscipline, his 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 his 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.  In view of the foregoing, 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)                                         AR20100018981



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ABCMR Record of Proceedings (cont)                                         AR20100018981



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