IN THE CASE OF:
BOARD DATE: 19 January 2012
DOCKET NUMBER: AR20110012760
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 be upgraded.
2. The applicant states he wants his discharge upgraded in order to receive veterans benefits.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and General Court-Martial Order Number 174, Fort Knox, Kentucky, dated 6 November 2009.
CONSIDERATION OF EVIDENCE:
1. On 3 February 2004, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty (MOS) 74D (Chemical Operations Specialist). He reenlisted on 6 October 2007.
2. General Court-Martial Order (GCMO) Number 15, Headquarters, Eighth U.S. Army, dated 18 September 2008 shows that the applicant was arraigned, tried, and found guilty of violating:
a. Article 90, Uniform Code of Military Justice (UCMJ) for disobeying a lawful command of a superior commissioned officer;
b. Article 121, UCMJ (five specifications) for stealing; and
c. Article 123, UCMJ for uttering a certain writing in words and figures with the intent to defraud.
3. GCMO Number 15 indicates that on 7 May 2008, the applicant was sentenced to reduction to pay grade E-1; confinement for 1 year; and a bad conduct discharge.
4. GCMO Number 174, Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, dated 6 November 2009, affirmed the sentence to reduction to pay grade E-1; confinement for 1 year; and a bad conduct discharge, adjudged on
7 May 2008, as promulgated in GCMO Number 15, Headquarters, Eighth U.S. Army, dated 18 September 2008. Of the forfeitures of all pay and allowances, required by Article 58b, UCMJ, only so much of the adjudged forfeitures of all pay and allowances as amounts to $500.00 pay per month and allowances were deferred effective 14 May 2008. The deferment was increased on 28 May 2008 to total $1347.00 per month. The deferment was terminated effective
18 September 2008. Article 71(c) having been complied with, the sentence to a bad conduct discharge was to be executed. That portion of the sentence pertaining to confinement had been served.
5. The applicant's DD Form 214 shows that he was discharged from the Regular Army on 25 January 2010 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial. He received a bad conduct characterization of service.
6. 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 contends that his bad conduct discharge should be upgraded so he may receive veteran benefits.
2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations.
3. The applicant's desire to obtain veteran benefits is not justification for an upgrade of his 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 seriousness of the applicant's criminal behavior, 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 above, the applicantÂ’s request should be denied.
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) AR20110012760
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ABCMR Record of Proceedings (cont) AR20110012760
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