IN THE CASE OF:	

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090014062 


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 dishonorable discharge to an honorable discharge.  He also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show that he completed his first full term of service.  He further requests to personally appear before the Board.

2.  The applicant states that he was not supposed to have received a dishonorable discharge.  He was court-martialed for stop loss.  He was out-processing when this happened.  The out-processing facility made a mistake.  He contends that he was told his 3-year active duty enlistment cancelled his 8-year Reserve obligation.  The applicant states that he has more to explain, but can only do so in front of a panel.

3.  The applicant provides, in support of his application, copies of his DD Form 214; DD Form 4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States); DD Form 458 (Charge Sheet); General Court-Martial Order Number 9, U.S. Army Southern European Task Force, dated 27 November 2007; United States Army Court of Criminal Appeals decision, dated 17 April 2008; and his Enlisted Record Brief.

CONSIDERATION OF EVIDENCE:

2.  On 6 November 2003, the applicant enlisted in the U.S. Army Reserve (USAR) for 8 years.  The applicant's DD Form 4/1, which he initialed, states that his 3-year active duty enlistment counts towards fulfillment of his military service obligation.
3.  On 15 April 2004, the applicant enlisted in the Regular Army (RA) for a period of not less than 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 92F (Petroleum Supply Specialist).

4.  On 12 November 2004, the applicant was assigned for duty with the Forward Support Company, 501st Combat Support Battalion, located in Vicenza, Italy.  He was subsequently assigned to the 173rd Airborne Brigade Combat Team.

5.  The applicant served in Afghanistan during the period 23 March 2005 to
23 March 2006.  While in Afghanistan, he was promoted to specialist, pay grade E-4, effective 1 February 2006.

6.  On 15 May 2007, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the wrongful use of marijuana.  The punishment included reduction to pay grade E-1, a forfeiture of $650.00 pay per month for 2 months, and 45 days restriction and extra duty.

7.  On 4 June 2007, he was reassigned to the Rear Detachment, 2nd Battalion, 503rd Infantry Regiment, 173rd Airborne Brigade Combat Team.

8.  On 9 August 2007, charges were preferred against the applicant under the UCMJ for violation of Article 86 by being absent without authority (AWOL) from on or about 21 May to on or about 19 June 2007; for violation of Article 87 by missing movement on 21 May 2007; and for violation of Article 134 by breaking restriction on 21 May 2007.

9.  On 13 September 2007, the applicant offered to waive an Article 32 hearing; to enter into a written stipulation of fact with the trial counsel as to the circumstances of the offenses; to waive his right to call witnesses who were located more than 100 miles from Vicenza, Italy; to be tried by a military judge; and to plead guilty to all charges and specifications.  His offer was conditioned upon the convening authority's agreement to disapprove any sentence to confinement in excess of 10 months.

10.  On 14 September 2007, the convening authority accepted the applicant's offer.

11.  On 20 September 2007, the applicant entered into a stipulation of fact between trial counsel and defense counsel.  It essentially stated the following.

	a.  The applicant had enlisted on 6 November 2003 in the USAR for 
8 years.  He also enlisted for a period of 3 years in the RA beginning on 15 April 2004.  Due to stop-loss requirements, the applicant was scheduled to leave active duty on or about 3 August 2008, or 90 days after his unit returned from Afghanistan, whichever was later.

	b.  The applicant had been assigned to the 173rd Airborne Brigade Combat Team as a petroleum specialist since November 2004.  He trained with his unit during the months leading up to deployment.  He knew that he was lawfully ordered to deploy on 22 May 2007 to Afghanistan for an estimated 15-month deployment. 

	c.  Despite having knowledge of his order and duty to deploy, the applicant wrongfully left his unit on 21 May 2007 with the intent to miss movement.  He did miss the movement of his unit and he remained AWOL for the next 29 days.  He also violated his restriction which was imposed upon him by his battalion commander as NJP.

	d.  The applicant had voluntarily told his supervisors that he had used marijuana in April and May 2007.  He had used it twice while on leave.  His supervisors reported this misconduct to their chain of command.  Prior to the applicant's NJP, he was directed to provide a urine sample.  After the NJP, it was learned that the applicant had tested negative for marijuana.  The applicant had never tested positive for any drugs, including his admission of using marijuana.

	e.  Less than a week after his NJP, the applicant was required to deploy with his unit.  Instead, he packed his belongings and left his unit without permission with no intention of deploying.  On 22 May 2007, the applicant's identification card was flagged and his status changed from present for duty to AWOL.  On 
24 May 2007, he attempted to enter Caserma Ederle, a U.S. military installation in Italy.  When the security guard informed him that he was flagged and proceeded to call the military police, the applicant abandoned his military identification card and ran away from the gate.  He traveled throughout Southern France and Spain for the next 29 days, avoiding military authorities.  On 19 June 2007, he turned himself in at the Naval Base in Rota, Spain.  He was subsequently returned to his unit.

12.  On 25 September 2007, before a military judge at a general court-martial, the applicant pled guilty to all charges and specifications.

13.  The military judge found the applicant guilty of all charges and specifications.  The applicant was sentenced to a forfeiture of all pay and allowances, confinement for 1 year, and a dishonorable discharge.
14.  On 31 October 2007, the staff judge advocate (SJA), in a written review for the convening authority, summarized the charges, specifications, findings, and sentence.  The SJA also summarized the applicant's military service to include his training and awards.  The SJA recommended approval of only so much of the sentence as provided for forfeiture of all pay and allowances, confinement for 
10 months, and a dishonorable discharge.

15.  On 27 November 2007, the convening authority approved only so much of the sentence as provided for forfeiture of all pay and allowances, confinement for 
10 months, and a dishonorable discharge.

16.  On 17 April 2008, the United States Army Court of Criminal Appeals considered the entire record, including issues personally specified by the applicant.   It held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence were affirmed.

17.  General Court-Martial Order Number 179, Headquarters, United States Army Armor Center. Fort Knox, KY, dated 18 August 2008, provided that the sentence promulgated in General Court-Martial Order Number 9, Headquarters, U.S. Army Southern European Task Force (Airborne), APO AE 09030, dated 25 September 2007, that provided for a dishonorable discharge, confinement for 10 months, and a forfeiture of all pay and allowances, adjudged on 25 September 2007, had been affirmed.  Article 71(c), UCMJ, having been complied with, the dishonorable discharge was ordered executed.

18.  The applicant's DD Form 214 shows that he was discharged on 
30 December 2008, under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, with a dishonorable discharge.

19.  Item 12c (Net Active Service This Period) of the individual's DD Form 214 shows 3 years, 11 months and 17 days.

20.  Item 18 (Remarks) of the applicant's DD Form 214 states that he did not complete his first full term of service.

21.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
22.  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.

23.  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 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.

24.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.  It provides, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  It further provides that a Soldier is considered to have completed his/her first full term of service if he/she has completed or exceeded his/her initial enlistment.  A determination is made by comparing the Soldier's enlistment document and Item 12c of the individual's DD Form 214.

25.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable and that his DD Form 214 should be corrected to show that he completed his first full term of service.  He also requests a personal appearance before the Board.

2.  The applicant requested a personal appearance before the Board; however, since there is sufficient evidence in the record to fully consider this case, a formal hearing is not warranted.  If the applicant is not satisfied with the results of the 
informal Board hearing, he may request reconsideration and provide new evidence that was not previously considered by the Board.
3.  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.

4.  The applicant acknowledged in his stipulation of fact that he was held beyond his initial enlistment due to stop-loss and was lawfully ordered to deploy.  He subsequently pleaded guilty to all charges and specifications.

5.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his dishonorable discharge to an honorable or a general, under honorable conditions discharge.

6.  In view of the above, the applicant's request for an upgrade of his discharge should be denied.

7.  The applicant's DD Form 4/1, which he initialed, states that his 3-year active duty enlistment counts towards fulfillment of his military service obligation.  Therefore, his contention that his 3-year active duty enlistment cancelled his USAR obligation is without merit.

8.  The evidence clearly shows that the applicant's initial term of service was for a period of 3 years.  Since he had completed more than 3 years of active duty service, his DD Form 214 should be corrected to show that he has completed his first full term of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from in Item 18 of his DD Form 214 the entry "Member has not completed first full term of service" and replacing it with the entry "Member has completed first full term of service."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge and granting him a personal appearance before this Board.



      ___________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)                                         AR20090014062



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ABCMR Record of Proceedings (cont)                                         AR20090014062



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