BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20100030426


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 reconsideration of an earlier request for upgrade of his bad conduct discharge (BCD) to an honorable discharge.

2.  In addition, he now requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 June 2008 be divided into two periods of service by issuing him a DD Form 214 for honorable service prior to his reenlistment for the period 19 August 2002 through 7 November 2004.  He further requests upgrade of the remaining period from 8 November 2004 through
27 June 2008 to an honorable discharge.

3.  He states that he would like to have his first period of enlistment on a separate DD Form 214 because he never had any type of disciplinary problems prior to his reenlistment.  He continues that the period covered after his reenlistment should be upgraded to honorable.  He continues that the drugs were not his and no one would believe him.  Since his discharge from the military, he has not been in any trouble with the law.

4.  The applicant provides:

* his DD Form 214
* a Miami-Dade County, Florida, Police Department Arrest Record
* five letters of support from fellow associates

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000397, on 3 August 2010.

2.  The applicant's contentions are new arguments, which will be considered by the Board.  In addition, the evidence provided, except for the DD Form 214, is new evidence that will be considered by the Board.

3.  The applicant enlisted in the Regular Army (RA) on 19 August 2002 for a period of 2 years.  He was honorably discharged on 7 November 2004 for the purpose of immediate reenlistment.  On 8 November 2004, he reenlisted for a period of 4 years.  

4.  General Court-Martial Order Number 10, issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC, dated 9 March 2007, shows the applicant was found guilty of violating Article 112a of the Uniform Code of Military Justice by wrongfully introducing approximately 65.5 grams of marijuana and approximately 2.8 grams of cocaine onto a military installation with the intent to distribute.  He was sentenced to confinement for 4 years, reduction to the rank/grade of private (PV1)/E-1, and a BCD.  His sentence was adjudged on 16 November 2006.

5.  On 6 September 2007, the U.S. Army Court of Criminal Appeals, on consideration of the entire record including consideration of the issues personally specified by the applicant, found the findings of guilty and the sentence approved by the convening authority correct in law and fact.  Those findings of guilty and the sentence were affirmed.

6.  On 27 June 2008, the applicant was separated accordingly with a BCD.  He completed 3 years, 8 months, and 6 days of creditable active service and 796 days of lost time due to confinement.  The DD Form 214 he was issued at the time shows in:

* Item 18 (Remarks) the entry “CONTINUOUS HONORABLE ACTIVE SERVICE: 20020819 - 20041107//IMMEDIATE REENLISTMENTS THIS PERIOD:  20041108 – 20080627//”
* Item 25 (Separation Authority) the entry "AR (Army Regulation) 635-200, chapter 3"


7.  The applicant provided five letters of support from his friends that all state they have known him for many years.  The letters state the applicant is trustworthy, dependable, and that he has never been in any type of trouble since knowing him.

8.  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. It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence must be ordered duly executed.

9.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.

11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It is a summary of a Soldier’s most recent period of continuous active service and provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Paragraph 2-1b5 states that a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA.  

12.  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 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 contention that his DD Form 214 for the period ending
27 June 2008 should be divided into two separate DD Forms 214 to show his period of honorable service was considered and is without merit.  The DD Form 214 he was issued appropriately shows in item 18 his period of honorable active service prior to his reenlistment on 8 November 2004, which is in compliance with the applicable Army regulation.  There is no provision for issuing separate DD Forms 214 for a Soldier's continuous RA service.

2.  The applicant's post-service conduct is noteworthy; however, good post-service conduct alone is insufficient as a basis for mitigating his indiscipline in the Army or for upgrading a properly issued discharge.

3.  The evidence of record confirms the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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.

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:

1.  Regarding the applicant’s request for reconsideration for upgrade of his bad conduct discharge to an honorable discharge, 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 to amend the decision of the ABCMR set forth in Docket Number AR20100000397, dated 3 August 2010.

2.  Regarding the applicant's request for a separate DD Form 214 to show his prior honorable service, 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)                                         AR20100000397



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ABCMR Record of Proceedings (cont)                                         AR20100030426



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