IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100019313 


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 (BCD) be upgraded to a general discharge.

2.  He states he has changed and taken charge of his life.  He states that he helps homeless Veterans in his area and he is active in his church.  He requests a second chance to put his past behind him and an opportunity to return to school to further his education.

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 
1 February 2006.  

2.  On 20 November 2007, he was convicted by a general court-martial for the following offenses:

* Being absent without leave (AWOL) from 21 December 2006 to 
28 February 2007
* Wrongfully possessing and consuming alcohol while under the age of 21
* Wrongfully using marijuana
* Stealing two cell phones, one laptop computer, and some amount of cash, the property of R.K. and J.J.
* Unlawfully breaking and entering the dwelling of R.K. and J.J. with the intent to commit a criminal offense, larceny
* Committing assault upon R.K. and J.J. by brandishing a weapon with the intent to commit burglary 

3.  On 20 November 2007, the court sentenced him to reduction to the grade of E-1, a forfeiture of all pay and allowances, confinement for 3 years, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on an unknown date.  The BCD was ordered executed on 30 October 2008.

4.  On 20 March 2009, he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) due to court-martial, other with a BCD.  He had completed 1 year, 7 months, and 9 days of total active service with lost time from 21 December 2006 to 
28 February 2007 and 20 November 2007 to 20 March 2009.

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 BCD; and provides that a Soldier will be given a BCD 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.  The applicant was given a BCD 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.  Additionally, the fact that he has taken charge of his life and helps homeless Veterans is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

6.  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)                                         AR20100019313



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ABCMR Record of Proceedings (cont)                                         AR20100019313



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