IN THE CASE OF: BOARD DATE: 12 August 2010 DOCKET NUMBER: AR20100000265 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 that his bad conduct discharge be upgraded to a general discharge. 2. The applicant states he left because he was acting in the best interests of his mother who is a documented epileptic and that he was coming back from his absence. He further states that he now has no cartilage in his knees because of the Army and needs benefits from the Department of Veterans Affairs. 3. The applicant provides no additional documentary evidence in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show he enlisted in the Regular Army on 29 September 2005. He completed initial entry training, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-2. 2. On 10 September 2007, a general court-martial convicted the applicant of being absent without authority with the intent to remain away during the period 6 October 2006 to 6 April 2007. The sentence was adjudged on 10 September 2007. He was sentenced to 4 months of confinement and a bad conduct discharge. 3. General Court-Martial Order Number 22, dated 15 January 2009, shows the sentence was affirmed. It shows the appellate review was completed and the sentence was ordered executed. 4. Accordingly, on 27 March 2009, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, as a result of court-martial, other. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 2 years, 8 months, and 22 days of active service. Item 29 (Dates of Time Lost During This Period) contains the entry, "Under 10 USC 972: 20061006-20070406; 20070910-20071215." 5. A search of the applicant's records failed to reveal any evidence he applied for a hardship discharge due to his mother's alleged condition or that he had a medical condition with his knees such as that described in his application. 6. 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. A discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 7. Army Regulation 635-200, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge 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. 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 (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. There is no evidence the applicant's mother was epileptic and required his assistance or that he reported having any such problem while on active duty. There is also no evidence he has no cartilage in his knees due to his Army service or that he was planning to return from his unauthorized absence. 2. However, even if there was evidence to support the applicant's contentions, it may not form the basis for granting his request. 3. The applicant was issued a bad conduct discharge pursuant to the approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence ordered executed. His conviction and discharge were affected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 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. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits. 6. Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to a general 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) AR20100000265 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20