BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120002109 


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 (BCD) to a general discharge.

2.  The applicant states he was honest with U.S. Army Criminal Investigation Command officials when they questioned him about matters for which he was being investigated.  As a result, he was court-martialed, sentenced to 9 months in confinement, and discharged from the Army after serving 7 months in confinement.  He also states:

	a.  He has been clean and sober since being released from confinement and he has stayed out of trouble since being discharged.

	b.  He has been steadily employed and is working to pay off his medical bills.  He has also applied for admission to college to study engineering.

	c.  He has learned the importance of pursuing positive goals in life and requests a review and upgrade of his discharge based on his application.

3.  The applicant provides a criminal history report and notice of college registration in support of his request.





CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 25 July 2006 for a period of
3 years and 26 weeks.  He was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).

2.  A DA Form 4430 (Department of the Army Report of Result of Trial) shows: 

	a.  On 9 May 2008, the applicant was convicted at a general court-martial of:

* wrongfully using a Schedule II controlled substance
* wrongfully distributing a Schedule II controlled substance
* wrongfully distributing Lysergic Acid Diethylamide
* wrongfully using over-the-counter cold medicine
* wrongfully using a hallucinogenic plant
* willfully disobeying a superior commissioned officer

	b.  He was sentenced to reduction to pay grade of E-1, a forfeiture of all pay and allowances, confinement for 9 months, and a BCD.

3.  Headquarters, Seventh U.S. Army Joint Multi-National Training Command, Unit 28310 (Germany), General Court-Martial Order Number 20, dated 
8 September 2008, promulgated the convening authority's approval of the sentence.

4.  U.S. Army Court of Criminal Appeals, Notice of Court-Martial Order Correction, dated 26 January 2009, corrected the sentence in the case of the applicant to reduction to pay grade of E-1, a forfeiture of all pay and allowances, confinement for 8 months and 15 days, and a BCD.

5.  Headquarters, U.S. Army Armor Center, Fort Knox, Kentucky, General Court-Martial Order Number 134, dated 6 August 2009, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 23 September 2009 under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial (other).

   a.  He had completed 2 years, 7 months, and 3 days of active service.

   b.  He had 210 days of time lost under Title 10, U.S. Code, section 972.
7.  In support of his application, the applicant provides the following documents a:

	a.  State of Alaska, Department of Public Safety, Division of Statewide Services, Criminal History Report, dated 4 November 2011, that shows there are no criminal history records for the applicant.

	b.  University of Alaska (Anchorage) acknowledgement, dated 6 December 2011, showing the applicant applied for admission into a Bachelor Degree program.

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 applicant contends his BCD should be upgraded because he was honest about his guilt with respect to the charges against him.  He served his sentence, worked steady, and remained clean since being discharged.  He has changed his life and he has been in no trouble.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.

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.  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.  The applicant's contention regarding his post-service conduct was considered.  However, good post-service conduct alone is not an adequate basis for upgrading a discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20120002109



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ABCMR Record of Proceedings (cont)                                         AR20120002109



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