IN THE CASE OF:
BOARD DATE: 14 May 2015
DOCKET NUMBER: AR20140016136
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 honorable.
2. The applicant states:
* there was a lack of evidence and double standards
* he would like acknowledgement of his awards, combat service time, and community service
3. The applicant provides:
* Certificate of Promotion
* two Army Commendation Medal (ARCOM) Certificates
* two Army Achievement Medal (AAM) Certificates
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 15 January 2004 for 3 years. He completed his training and was awarded military occupational specialty 12B (combat engineer). He served in Iraq from 6 October 2005 to 2 October 2006. He was honorably discharged on 4 December 2005 for immediate reenlistment. He reenlisted on 5 December 2005 for 6 years. He served in Iraq from 29 March to 23 December 2008. He was promoted to the rank of staff sergeant effective 5 May 2008. He was honorably discharged on 29 January 2010 for immediate reenlistment. He reenlisted on 30 January 2010 for 6 years.
2. On 14 June 2011, he received a general officer memorandum of reprimand (GOMOR) for driving under the influence of alcohol.
3. On 21 January 2012, he was convicted by a general court-martial of stealing U.S. currency of a value in excess of $3,500 the property of Credit First National Association (seven specifications) contrary to his pleas. He was sentenced to confinement for 3 months, reduction to E-1, and a bad conduct discharge. On 16 August 2012, the convening authority approved the sentence.
4. The U.S. Army Court of Military Review decision is not available for review. However, Headquarters, I Corps, Joint Base Lewis-McChord, Washington, General Court-Martial Order Number 12, dated 21 February 2013, shows the applicant's bad conduct discharge was ordered executed.
5. On 29 March 2013, he was issued a bad conduct discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. He completed a total of 9 years and 3 days of creditable active service with 71 days of lost time. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded the:
* Iraq Campaign Medal with two bronze service stars
* ARCOM (3rd Award)
* AAM (2nd Award)
* Army Good Conduct Medal (3rd Award)
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Combat Action Badge
* Driver and Mechanic Badge with Driver-W Bar
6. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.
a. Chapter 3 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a 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 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 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.
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 Board acts, the 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions that there was a lack of evidence and double standards related to evidentiary and legal matters should have been addressed and conclusively adjudicated in the court-martial appellate process.
2. A trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.
3. His awards and combat service were noted. However, his record of service during his last enlistment included a GOMOR for drunk driving, one general court-martial conviction for serious offenses, and 71 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's service is insufficiently meritorious to warrant an honorable or a general discharge.
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 undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate. As a result, clemency is not warranted in this case.
5. In view of the foregoing evidence, there is no basis for granting the applicant's requested relief.
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 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) AR20140016136
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ABCMR Record of Proceedings (cont) AR20140016136
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