IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20080012760 


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 a general discharge under honorable conditions.

2.  The applicant states, in effect, that he desperately needs to have his discharge upgraded because it is hindering his ability as a man to maintain and improve his quality of life.  His discharge is restricting his ability to compete in the job market.  Finding a good job today is not easy with so many people competing for employment.  The applicant states that he is in a very severe state of depression and he feels like he is taking zero steps forward and falling two steps backward.  His discharge is disqualifying him before being given a chance to show that he is willing and capable of performing any number of jobs.  The applicant also contends that he received poor advice from his counsel at his court-martial.  He simply went home and he was charged with desertion, he never intended to stay away.  The military never looked for him.  Unfortunately, he was apprehended before he could turn himself in to military authorities.  

3.  The applicant provides, in support of his application, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  On 12 August 1996, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 63S (Heavy Wheeled Vehicle Mechanic).  

2.  On 18 December 1996, the applicant was assigned duty as a heavy wheeled vehicle mechanic at Fort Drum, New York.

3.  On 31 July 1998, the applicant was absent without leave.  He was dropped from the rolls of the Army as a deserter on 30 August 1998.

4.  On or about 7 March 2001, the applicant was apprehended by civilian authorities and subsequently returned to military control.

5.  On 2 May 2001, charges were preferred against the applicant for violation of Article 85, 1 specification, (desertion) being absent without leave from on or about 31 July 1998 to 7 March 2001.

6.  On 25 May 2001, the applicant offered to plead guilty to the charge and its specification provided the convening authority did not approve any sentence of confinement in excess of 8 months.  Any other punishment lawfully adjudged, except a fine, may be approved.  In making this offer, the applicant agreed to enter into a stipulation of fact concerning the facts and circumstances surrounding the offense to which he offered to plead guilty:  

   a.  He stated that he was satisfied with the defense counsel.
   
b.  He waived his rights to an Article 32 investigation conditioned upon acceptance of his offer to plead guilty.

c.  He acknowledged that no other person or persons attempted to coerce him into making an offer to plead guilty.

d.  He acknowledged that defense counsel advised him of the meaning and effect of his guilty plea and he understood the meaning and effect thereof.

e.  He acknowledged that he understood he could withdraw his offer to plead guilty at any time prior to approval of any findings.

7.  On 6 June 2001, the applicant consented to a stipulation of fact between the government and defense, which in effect stated, in part, that the applicant had absented himself from his unit on 31 July 1998 without authority and intended to remain away from his unit permanently.

8.  On 21 June 2001, the convening authority accepted the applicant's offer to plead guilty.

9.  On 11 July 2001, before a military judge at a general court-martial, the applicant pled guilty to the Charge and its specification.

10.  The military judge found the applicant guilty of the charge and its specification.  The applicant was sentenced to a reduction to pay grade E-1, confinement for 15 months and a bad conduct discharge.

11.  On 27 November 2001, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the applicant's service record, charges, pleas, and findings.  The SJA recommended approval of the sentence.

12.  On 15 January 2002, the convening authority approved only so much of the sentence as provided for reduction to the pay grade of E-1, confinement for 
8 months, and discharge from the service with a bad conduct discharge, except for that part of the sentence extending to a bad conduct discharge, ordered the sentence executed.  The applicant was credited with 80 days of confinement against his sentence to confinement.  

13.  On 5 January 2005, the United States Army Court of Criminal Appeals reviewed the applicant's court-martial.  The applicant's appellate defense counsel had submitted the case assigning four errors: (1) the military judge erroneously held that restrictions imposed at the Fort Sill, Oklahoma, Personnel Control Facility (PCF) were not tantamount to confinement; (2) the military judge failed to credit 1 day of confinement against the applicant's sentence to confinement for a portion of 15 March 2001 when the applicant was held in pretrial confinement; 
(3) the applicant's chain of command failed to comply with the review and notice provisions of Rule for Courts-Martial 305, entitling the applicant to additional sentence credit; and (4) the staff judge advocate failed to properly advise the convening authority of the applicant's restriction.  Additionally, the trial defense counsel had failed to prepare and present clemency matters on the applicant’s behalf.  The Court set aside the action of the convening authority, dated 
15 January 2002, and remanded the case to the Judge Advocate General for a new post- trial action.  The court took this action because of a conflict of interest on the part of the counsel handling the applicant's post trial submission and the applicant’s counsel's failure to submit matters on behalf of the applicant to the convening authority.   

14.  The result of the new post-trial action is not available; however, on 31 May 2005, the United States Army Court of Criminal Appeals affirmed the findings of guilty.  However, the Court noted several errors in the SJA's advice to the convening authority and determined some relief was appropriate.  Only so much of the sentence as provided for a bad conduct discharge, confinement for 6 months, and reduction to pay grade E-1 was affirmed.  
15.  The applicant's DD Form 214 shows he was discharged on 20 January 2006 under the provisions of Army Regulation 635-200, chapter 3 with a bad conduct discharge.

16.  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 characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he received poor advice from his defense counsel and had never intended to stay away forever.  

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.  There is no available evidence showing that the applicant’s discharge was inequitable or that any of his rights were denied.

4.  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 aforementioned requirement.

5.  In view of the above, the applicant's request should be denied.

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)                                         AR20080012760



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ABCMR Record of Proceedings (cont)                                         AR20080012760



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