IN THE CASE OF:
BOARD DATE: 26 March 2015
DOCKET NUMBER: AR20140013129
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 an honorable discharge.
2. The applicant states:
* he requests clemency and an honorable discharge because he has already undergone 6 months of confinement
* he has been experiencing difficulties and hardships in every sphere of life due to his BCD
* kindly help him come out of the darkness into the light so that he can lead an honorable life and be able to work as a proud veteran
* he wants to recoup some of the benefits he has lost
3. The applicant provides:
* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 4430 (Department of the Army Report of Result of Trial)
* orders
* two memoranda
* one personal reference letter
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 17 November 2009.
2. The applicant submitted a DA Form 4430, which indicates that General Court-Martial (GCM) Order Number 12, dated 19 November 2012, shows he pled and was found guilty of:
a. one specification of attempting to wrongfully distribute a Schedule I controlled substance on 16 June 2012; and
b. three specifications of attempting to wrongfully distribute Schedule II controlled substances on or about 22, 24 and 29 June 2012.
3. The applicant was sentenced to reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, confinement for a period of 12 months, and the issuance of a BCD. The sentence was approved and, except for the part of the sentence extending to a BCD, was executed.
4. GCM Order Number 46, dated 30 January 2014 shows, in pertinent part, the applicant's sentence was finally affirmed and the BCD was ordered duly executed.
5. The applicant's DD Form 214 shows he was discharged on 28 February 2014 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3, by reason of court-martial. This form further lists the applicant's character of service as "bad conduct."
6. The personal reference he submitted was from his parents, who noted that their son was glad to have served in the Army, but he made the mistake of selling a controlled substance.
7. 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 ABCMR acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.
8. Army Regulation 635-200 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.
b. Paragraph 3-7a states 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.
c. Paragraph 3-7b states 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's contention that his discharge should be upgraded because he wants to work as a proud veteran and recoup some of his VA benefits was carefully considered and found to be without merit.
2. The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for programs or benefits. Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.
3. The evidence of record shows the applicant was convicted by a GCM and he received a BCD. Trial by a GCM was warranted by the serious nature of the offenses for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which he was convicted.
4. His reference letter is noteworthy. However, it is not sufficiently mitigating to support a change in the narrative reason for his discharge.
5. 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 was appropriate. As a result, clemency is not warranted 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) AR20140013129
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ABCMR Record of Proceedings (cont) AR20140013129
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