IN THE CASE OF:	

		BOARD DATE:	  2 March 2010

		DOCKET NUMBER:  AR20090015956 


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 that his sentence was too harsh and far exceeded that of other cases.

3.  The applicant did not provide any additional documentary evidence in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 28 September 1999. He completed basic combat and advanced individual training and was awarded military occupational specialty 75B (Personnel Administration Specialist).  He was assigned to the 2nd Battalion, 10th Aviation Regiment, Fort Drum, NY.

3.  On 21 September 2002, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 21 October 2000.  He was apprehended by civil authorities and was returned to military control on 17 October 2002.

4.  On 21 October 2002, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 21 September 2000 through on or about 17 October 2002, a violation of Article 85 (desertion, not terminated by apprehension) of the Uniform Code of Military Justice (UCMJ).

5.  On 15 November 2002, the applicant pled guilty at a general court-martial to one specification of desertion during the period on or about 21 September 2000 through 17 October 2002.  The court found him guilty pursuant to his plea and sentenced him to a reduction to private/E-1, confinement for 12 months, and a bad conduct discharge.  The sentence was adjudged on 15 November 2002.

6.  On 26 February 2003, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed. 

7.  On 23 April 2003, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 256, dated 11 September 2003, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

9.  The applicant was discharged from the Army on 26 December 2003.  The 
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct.  He completed 3 years, 6 months, and 2 days of creditable military service.  He also had 756 days of lost time due to being AWOL and 257 days of lost time due to being in confinement. 

10.  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.

11.  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.  

12.  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.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 85 (desertion to avoid hazardous duty) is a dishonorable discharge, a forfeiture of all pay and allowances, and confinement for 5 years.  When the desertion is terminated by apprehension, the maximum confinement is 3 years and when the desertion is terminated by other than apprehension, the maximum confinement is 2 years. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The available evidence shows the applicant’s trial by general court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  In order to justify correction of a military record, the applicant must show, 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.  As a result, there is insufficient basis to upgrade the applicant's 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)                                         AR20090015956



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ABCMR Record of Proceedings (cont)                                         AR20090015956



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