IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090012948 


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 upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions discharge.

2.  The applicant states that he believes the discharge he received was not consistent with the policies and traditions of service.  He goes on to state that at his trial, his defense team did not provide sufficient mitigating factors or evidence to prove that he was a distinguished Soldier.  He also states that he completed his first full term of service and he reenlisted to stay at his present duty station, and he served in Operation Joint Forge, receiving an Army Achievement Medal (AAM), a NATO Medal, and the "Army Expeditionary Service Medal."  He further states that he admits he was wrong but he was 22 years of age and he had family problems.  He thought irrationally and tried to make it right by twice returning from an absent without leave (AWOL) status, only to be ignored when he requested a voluntary administrative discharge.  He continues by stating that it has been 4 years now and he has paid his debt to society.  He asks the members of the panel to reconsider his character of service.

3.  The applicant provides an undated letter from his wife in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 24 October 1977 and he was single when he enlisted in the Regular Army (RA) in Shreveport, LA on 5 February 1998 for a 
period of 3 years and training in military occupational specialty (MOS) 21B (combat engineer).  He completed his training and was transferred to Fort Hood, TX.

2.  On 16 February 2000, while serving in the rank/grade of private first class (PFC)/E-3, he reenlisted for a period of 4 years, stabilization at Fort Hood for
12 months, and a selective reenlistment bonus (SRB).

3.  On 10 June 2000, while serving in the rank/grade of specialist (SPC)/E-4, he went AWOL and he remained absent in deserter status until he was returned to military control on 8 December 2001.  Charges were preferred against him for this offense.

4.  He again departed AWOL from 29 December 2001 to 28 January 2002 and from 1 March 2002 to 6 March 2002.

5.  He again went AWOL on 19 March 2002 and he remained absent until he was apprehended by civil authorities.  He was returned to military control on 3 March 2005 and charges were preferred against him for his AWOL offenses.

6.  On 17 May 2005, he was convicted by a general court-martial of being AWOL from 10 June 2000 to 7 December 2001, from 29 December 2001 to 28 January 2002, from 1 March 2002 to 6 March 2002, and from 19 March 2002 to 3 March 2005.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 4 months, and a BCD.

7.  On 4 November 2006, orders were published indicating that the findings and sentence had been affirmed and, Article 71(c) having been complied with, directed that his BCD be executed.

8.  On 6 June 2007, while on excess leave status, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He had served 4 years, 6 months, and 8 days of total active service and he had approximately 1,729 days of lost time due to AWOL and confinement.  He was discharged on temporary records.

9.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.  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.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions and supporting documents have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and the extensive length of his absences.

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.  Accordingly, his service does not rise to the level of a general, under honorable conditions 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)                                         AR20090012948



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ABCMR Record of Proceedings (cont)                                         AR20090012948



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