IN THE CASE OF:	  

		BOARD DATE:	  18 April 2012

		DOCKET NUMBER:  AR20110021371 


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 an upgrade of his bad conduct discharge to a fully honorable discharge.

2.  The applicant states he believes his bad conduct discharge was unjust because he was going through a lot at the time and he had served his country in two wars with valor and pride.  He was discharged for driving under the influence (DUI) and he was not offered any help until it was too late.   

3.  The applicant did not provide any evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 29 January 2002.  He held military occupational specialty 19K (M-1 Armor Crewmember).  He also executed a reenlistment on 13 April 2005 and he attained the rank/grade of specialist/E-4.

2.  He was awarded or authorized the Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon, Combat Action Badge, and Driver and Mechanic Badge.  

3.  On 23 October 2006, he received a General Officer Memorandum of Reprimand (GOMOR) for a DUI offense on 13 October 2006.


4.  On 27 November 2006, he received a second GOMOR for a DUI offense on 27 October 2006.

5.  On 2 February 2007, he departed his unit in an absent without leave (AWOL) status and on 4 March 2007, he was dropped from Army rolls as a deserter.  He returned to military control on 10 May 2007. 

6.  On 15 June 2007, he received a third GOMOR for a DUI offense on 16 February 2007.

7.  On 25 June 2007, he pled guilty and was convicted by a special court-martial of: 

* one specification of being AWOL from 2 February to 10 May 2007
* on specification of driving a vehicle while intoxicated on 13 October 2006
* one specification of operating a vehicle while drunk on 27 October 2006
* one specification of operating a vehicle while under the influence on 16 February 2007

8.  The court sentenced him to confinement for 12 months, reduction to the lowest enlisted grade, and a bad conduct discharge.  

9.  On 7 February 2008, the convening authority approved the sentence and except for the bad conduct discharge ordered the sentence executed.  

10.  On 30 May 2008, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 

11.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 187, dated 25 September 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

12.  Accordingly, he was discharged from the Army on 27 February 2009.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation     635-200, chapter 3, as a result of court-martial, other.  This form further shows the applicant's character of service as bad conduct and that he completed 
6 years, 4 months, and 22 days of creditable military service with lost time from 2 February to 9 May 2007 and from 10 May to 8 October 2007.


13.  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 (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.

14.  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.  

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a special court-martial for various infractions and he was sentenced to a reduction, confinement, and a bad conduct discharge.  His trial by a special court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  Presumably the court considered his war time service when determining his sentence.

2.  Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR 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.

3.  Contrary to his argument that he was court-martialed for a DUI offense, the evidence of record shows he pled guilty and was sentenced by a court-martial due to one specification of being AWOL and three specifications related to DUI or while drunk.  
4.  Based on his record of indiscipline, the applicant's 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 either a general or an honorable discharge.

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)                                         AR20110021371



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ABCMR Record of Proceedings (cont)                                         AR20110021371



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