IN THE CASE OF:	  

		BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090010095 


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 to an honorable discharge.

2.  The applicant states he served over 9 years in the U.S. Army.  He was stationed at several different locations, such as Fort Riley, KS; Germany; Korea; Iraq/Kuwait; and Fort Bliss, TX, as a 92A2O (Automated Logistics Specialist).  He enjoyed the time he served and was very proud of service to his country.  He noticed he became more depressed as the years continued in the Army.  He had anxiety problems and consumed more alcohol.  His mother passed away when he was 9 years old and his father passed away when he was 24 years old; he was stationed in Germany at that time.  He continues to state that his brother developed a heroin addiction and he pushed himself not to have addictions like his brother or father.  He was a hard worker in the Army and his work habits never suffered from his past.  After he returned from Iraq, his rear detachment chain of command gave him 2 weeks of leave before he had to report to his next duty station in Korea.  While on leave, he spent as much time as he could with his brother.  During this time, he caught his brother using drugs on numerous occasions and he did not know what to do to help him.  He was placed on stop loss and he was supposed to return to Iraq.  He explained the situation concerning his brother to his chain of command and requested another 2 weeks of leave, but his request was denied.  He states that he was absent without leave (AWOL) for 43 days because he tried to help his brother.  He admits that he was wrong and accepts the responsibility for his actions.  As a result of his actions, he received a BCD and spent 8 months in an Army jail.  He has been out of the Army since 2006.  He has been a productive member of society and has been employed the entire time.  That one mistake erases all the good he did in the Army.  He would like to show his children his honorable discharge one day.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  After having prior inactive and active service, the applicant enlisted in the Regular Army on 20 March 1996.  He completed training as an automated logistical specialist in military occupational specialty 92A and was assigned to Fort Bliss, TX.  He was reassigned to Germany in January 1998 and departed in March 2000.  He was reassigned to Fort Riley, KS, after he returned to the continental United States.  His highest rank/grade held was sergeant/E-5.

2.  He served in Iraq from 3 September 2003 to 18 November 2003.

3.  On 24 August 2004, the applicant was found guilty pursuant to his pleas by a general court-martial of quitting his unit on or about 29 December 2003 without authority and with intent to shirk important service, namely deployment in support of Operation Iraqi Freedom, and did remain absent in desertion until on or about 10 February 2004.  He was sentenced to a reduction to the rank/grade of private/E-1, a forfeiture of all pay and allowances, confinement for 10 months, and to be discharged from the service with a BCD.

4.  On 18 January 2005, the convening authority approved the sentence and, except for that portion extending to a BCD, ordered it to be executed.

5.  On 4 August 2005, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed on 12 May 2006.

6.  The applicant's medical records reflect that he received counseling for alcohol dependence, mental health issues, grief counseling, and he had concerns regarding his brother.  Furthermore, the applicant served in Iraq and received awards during his service in the Army.

7.  Accordingly, the applicant was discharged on 31 August 2006 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  He completed a total of 9 years, 7 months, and 25 days of creditable active service with approximately 291 days of lost time due to AWOL and confinement.

8.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.

9.  Army Regulation 635-200, 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.  

10.  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.

11.  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 contention that he was AWOL because he tried to help his brother is noted.  Although the applicant's attempts to help his brother are commendable, this factor is not sufficiently mitigating to warrant the relief requested.  The applicant's records reflect he was receiving treatment for mental health issues.  However, there is insufficient evidence to conclude that the applicant could not appreciate the wrongfulness of his conduct or assist in his defense.

2.  The applicant's record of service shows he was convicted by a general court-martial of quitting his unit on or about 29 December 2003 without authority and with intent to shirk important service, namely deployment in support of Operation Iraqi Freedom, and did remain absent in desertion until on or about 10 February 2004.
3.  Based on the seriousness of the misconduct for which the applicant was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's requested relief.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

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)                                         AR20090010095



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ABCMR Record of Proceedings (cont)                                         AR20090010095



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