BOARD DATE: 29 July 2010 DOCKET NUMBER: AR20100001097 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 changed to an uncharacterized discharge. 2. The applicant states, in effect, the request is based on injuries sustained while in Iraq and for medical compensation and a Department of Veterans Affairs (VA) identification card. 3. The applicant provides no additional documentation in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the U.S. Army Reserve (USAR) on 11 October 2000 and upon completion of initial entry training he was awarded military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). He was discharged from the USAR and he enlisted in the Regular Army (RA) on 4 February 2002 for 3 years. On 14 October 2005, he reenlisted in the RA for 4 years. 2. On 5 January 2007, the applicant was found guilty by a general court-martial of committing the offense of carnal knowledge and sodomy with Ms. J.L.S., a child under the age of 16, unlawfully touching Ms. N.R. on her body by climbing on top of her, disorderly conduct, and breaking restriction. He was sentenced to be discharged from the service with a bad conduct discharge and confinement for 18 months. On 17 July 2007, the sentence was approved. The sentence having been affirmed pursuant to Article 71c, the bad conduct discharge was ordered executed. 3. Accordingly, the applicant was discharged on 28 August 2009, under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial with a bad conduct discharge. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge. It stipulates, that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the sentence was ordered duly executed. 5. Army Regulation 635-200, chapter 11 of this regulation, provides for the separation of personnel due to unsatisfactory performance and/or conduct while in an entry level status. This provision of regulation applies to individuals who had demonstrated that they were not qualified for retention because they could not adapt socially or emotionally to military life; because they lacked the aptitude, ability, motivation, or self discipline for military service; or they had demonstrated characteristics not compatible with satisfactory continued service. The separation policy applies to Soldiers who could not meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline. It also applies to Soldiers who were in an entry level status and, before the date of the initiation of separation action, completed no more than 180 days of continuous active duty and demonstrated that they could not or would not adapt socially or emotionally to military life. 6. Army Regulation 635-200, paragraph 3-9a(1), states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. 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 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. The applicant's request that his discharge be changed to an uncharacterized discharge has been carefully reviewed. 2. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted. 3. The applicant is not entitled to a character of service of uncharacterized. This characterization is reserved for Soldiers discharged while in an entry level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case. The applicant was had well over 180 days of active service when he was sentenced to a bad conduct discharge as a result of a court-martial. Therefore, he is not entitled to an uncharacterized characterization of service. 3. The ABCMR does not change of discharges based solely for the purpose of establishing eligibility for benefits from another agency. The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA. 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 therefore were appropriate. As a result, clemency is not warranted in this case. 5. In view of the above, 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 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) AR20100001097 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)