IN THE CASE OF:
BOARD DATE: 23 October 2008
DOCKET NUMBER: AR20080010849
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 (BCD) be upgraded.
2. The applicant states, in effect, that he was suffering from bipolar disorder and was under medical care at the time of his discharge.
3. The applicant provides no supporting documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted on 10 November 1997 and entered active duty on 22 January 1998. He extended his enlistment on 23 March 2001 and reenlisted on 1 November 2002 and 9 July 2003.
2. The available records do not include the applicant's service medical records.
3. The applicant was absent without leave (AWOL) for the following periods: 10 March through 1 April 2003, 17 June through 20 June 2003, and 7 July through on 8 July 2003.
4. Upon his return to military control on 9 July 2003, he was placed in confinement awaiting trial.
5. The applicant was charged with one count of desertion under Article 85, Uniform Code of Military Justice (UCMJ), and two counts of being AWOL under Article 86.
6. At the general court-martial, the applicant pled not guilty to the Article 85 desertion charge, but guilty of a violation of Article 86. He also pled not guilty to the other Article 86 charges. The court-martial found him not guilty on the Article 85 charge, but guilty of a lesser included charge of being AWOL under Article 86 of the UCMJ. He was also found guilty on the additional two Article 86 specifications.
7. On 15 March 2004, the applicant was sentenced to reduction to pay grade
E-1, a forfeiture of all pay and allowances, confinement for 7 months, to receive a BCD, and to be reprimanded.
8. Headquarters, Fort Hood, Texas, General Court-Martial Orders Number 19, dated 10 June 2004, shows that the convening authority approved the findings and sentence of the court-martial. The convening authority directed that the applicant be credited with 250 days of confinement against the sentence to confinement and reprimanded the applicant for his misconduct.
9. The applicant was placed in an excess leave status for the period 28 May 2004 through 15 August 2006, 841 days.
10. Headquarters, III Corps and Fort Hood, Texas General Court-Martial Order Number 27, dated 4 August 2006, ordered the BCD to be executed.
11. The applicant was discharged on 15 August 2006. He had completed
7 years, 10 months, and 20 days of creditable service with 279 days of lost time and 841 days of excess leave.
12. The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction. The ABCMR may, however, grant clemency on equitable grounds.
13. Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases on the evidence of record and is not an investigative body.
DISCUSSION AND CONCLUSIONS:
1. 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 discharge appropriately characterizes the misconduct for which the applicant was convicted. There is no basis to support clemency.
2. The applicant has not provided nor does the record contain any documentation to show that he was suffering from any medical condition that impaired his ability to know right from wrong and adhere to the right.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
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.
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