IN THE CASE OF:
BOARD DATE: 10 July 2012
DOCKET NUMBER: AR20120001335
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 upgrade of his bad conduct discharge (BCD) to a general discharge.
2. He states that [as of the date of his application] he had been discharged for 7 months. He states he incurred a disability because of the hostile work environment during his deployment to Iraq from 15 January 2007 to 30 March 2008.
3. He provides an Honorable Discharge Certificate dated 2 July 2007 and his DD Form 214 for the period ending 20 May 2011.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 23 November 2005. After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman). On 2 July 2007, he was honorably discharged to reenlist, and he reenlisted on 3 July 2007.
2. His record shows he served in Iraq from 16 January 2007 to 30 March 2008.
3. On 4 June 2010, Headquarters, Fort Carson, Fort Carson, CO, issued General Court-Martial Order Number 23, which shows he was found guilty of being absent without leave (AWOL) from 3 to 23 June 2009 and engaging in sexual contact with a female without legal justification or lawful authorization and without her permission on 8 May 2009. He was sentenced to be reduced to pay grade E-1, to be confined for 9 months, and to be discharged with a BCD.
4. On 17 February 2011, Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, issued General Court-Martial Order Number 23, which shows his sentence was affirmed on 24 September 2010 as corrected by the U.S. Army Court of Criminal Appeals. The orders directed execution of his BCD.
5. On 20 May 2011, he was discharged in accordance with his affirmed sentence.
6. His record is void of documentation showing he incurred any disabling conditions during his Army service.
7. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-11 (BCD) states 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.
b. 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 members 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.
c. 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.
8. 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 evidence of record does not support the applicant's request for an upgrade of his BCD.
2. The general court-martial proceedings against him were conducted in accordance with law and regulations. His conviction and sentence were properly reviewed and affirmed, and the sentence was ordered to be duly executed.
3. The evidence of record does not show he incurred a disabling condition during his Army service, nor has he provided such evidence.
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 record of indiscipline 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 relief he requests.
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) AR20120001335
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ABCMR Record of Proceedings (cont) AR20120001335
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