IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110015764


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 her bad conduct discharge (BCD) to a general discharge in order to reenter military service.

2.  The applicant states she was young and made a mistake, but she was under a lot of stress from ongoing family issues as her mother had just been diagnosed with liver cancer.  She states she requested leave but it was denied.  She concludes by stating she was concerned her mother would die.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 31 May 2006.  She completed training and she was awarded military occupational specialty (MOS) 45K (Armament Repairer).  Upon the completion of her training she was assigned to the 1st Battalion, 15th Infantry Regiment, Fort Benning, GA.

2.  On or about 1 March 2007, she was reported by her unit as absent without leave (AWOL).  She remained AWOL until on or about 16 April 2007.

3.  Court-martial charges were preferred against her for:

* Charge I, one specification of being AWOL from on or about 1 March 2007 to on or about 16 April 2007
* 
Charge II, four specifications of wrongfully using of marijuana between on or about:

* 2 December and 3 January 2007
* 8 January 2007 and 9 February 2007
* 10 February 2007 and 28 February 2007
* 1 March 2007 and 15 April 2007

4.  On 22 June 2007, her duty status changed from present for duty to confined at the hands of military authorities (pre-trial confinement).

5.  On 2 July 2007, she pled guilty at a general court-martial at Fort Benning to all charges and specifications and she was found guilty of the same.  She was sentenced to confinement for a period of 10 days and to be discharged with a BCD.

6.  On 21 September 2007, the convening authority approved the sentence of confinement for 10 days and, except for the BCD, he ordered it executed.  The convening authority credited the applicant with 10 days confinement credit against the approved sentence to confinement.

7.  On 28 May 2008, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

8.  On 12 May 2009, the U.S. Court of Appeals affirmed the decision of the U.S. Army Court of Criminal Appeals.

9.  General Court-Martial Order Number 106, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 2 July 2009, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD be duly executed.

10.  Accordingly, she was discharged from the Army on 28 August 2009.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of Army Regulation
635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial.  This form further shows her character of service as bad conduct, and that she completed 3 years, 1 month, and 2 days of creditable active service with 56 days of time lost and 2 years,
1 month, and 27 days of excess leave.

11.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  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.

	d.  Paragraph 3-10 provides that a Soldier will be given a BCD 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.

12.  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 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's request for upgrade of her BCD to a general discharge was carefully considered; however, there is insufficient evidence to support her request.

2.  She was given a BCD 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 she was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and her rights were fully protected.  She did not provide evidence that her punishment should not include a bad conduct discharge.

3.  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.

4.  Based on her record of indiscipline, her service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  In view of the foregoing, there is an insufficient evidentiary basis to grant relief in this case.

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)                                         AR20110015764



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