IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100025594 


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, or restoration to his former duty as an active duty military policeman.

2.  The applicant states, in effect, that his punishment [Bad Conduct Discharge] was too severe, given his junior enlisted status and his direct supervisor's involvement in the events leading to his discharge.  He states his punishment ruined his career.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with 3 attachments
* letter to his parents from the Platoon Leader and Platoon Sergeant of the 92nd Military Police Company
* 11 character reference and/or support letters from family members, friends, co-workers, and other community associates

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 8 February 2006.  On 24 May 2006, he entered active duty, under the split-option program, for the purpose of completing basic training. Upon completion of basic training, he was released from active duty and he continued his service in the USAR throughout his senior year of high school.  
2.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered on continuous active duty on 24 May 2006; however, his   Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points) shows he was credited with battle assembly attendance, while a USAR Troop Program Unit member, between 28 June 2006 and            20 August 2007.
 
3.  His DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the Regular Army, for a 3-year term, on        24 July 2007.  

4.  He completed advanced individual training, was awarded military occupational specialty 31B (Military Police), and was assigned to the 92nd Military Police Company, U.S. Army Garrison, Baumholder, Germany.

5.  On 18 September 2008, he was convicted by a general court-martial of conspiracy to commit larceny, damage to military property of the U.S., damage to property other than military property of the U.S., larceny, housebreaking, and unlawful entry.  The court-martial sentenced him to forfeiture of all pay and allowances, reduction to the lowest enlisted grade, confinement for 15 months, and a bad conduct discharge.

6.  On 17 November 2008, the convening authority approved the sentence of forfeiture of all pay and allowances, reduction to private/E-1, and confinement for 6 months and, except for the bad conduct discharge, he ordered it executed.

7.  On 29 May 2009, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

8.  General Court-Martial Order Number 161, Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, dated 15 October 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 6 January 2010.  The
DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 3, as a result of court-martial.  This form further shows his character of service as bad conduct, and that he completed 2 years, 5 months, and 20 days of total active service with      1 year, 1 month, and 23 days of time lost.



10.  He provides:

   a. DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), with 3 attachments, as follows:

(1) Attachment 1, a list of 6 issues he takes with regard to his discharge, which he characterizes as inequitable;

(2) Attachment 2, a letter from the applicant to the Army Discharge Review Board, in which summarizes the events leading to his discharge and pleads for discharge upgrade; and

(3) Attachment 3, a letter to his Member of Congress, in which summarizes the events leading to his discharge and pleads for the Member's assistance in getting his discharge upgraded.

   b. A letter to his parents, from the Platoon Leader and Platoon Sergeant of the 92d Military Police Company, which attests to the applicant's accomplishments and professionalism.

   c. 11 character reference and/or support letters from family members, friends, and other community associates, which acknowledge his youthful mistakes and plead for leniency in determining the appropriateness of a discharge upgrade.  

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.

13.  Army Regulation 635-200, paragraph 3-7c, provides that an under other than honorable conditions discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain circumstances.

14.  Army Regulation 635-200, paragraph 3-10, provides 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.  

15.  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 request for upgrade of his discharge character of service from bad conduct to under honorable conditions was carefully considered; however, there is insufficient evidence to support his request.  

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  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.  He did not provide evidence that his punishment would not include a bad conduct discharge.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

4.  His acceptance of responsibility and fulfillment of the requirements of his punishment were noted; however, these factors alone are not sufficiently mitigating to grant the requested relief.   

5.  Based on his 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 entitled to neither an upgrade of his bad conduct discharge, nor restoration to active duty as a military policeman.

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)                                         AR20100025594



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