IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090021399 


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 an honorable discharge (HD).

2.  The applicant states:

* he excelled as a mechanic and he was put in charge as a private first class (PFC)/E-3.  The unit was the first into Iraq in 2004 and the vehicles traveled over 30,000 miles without a breakdown.  He volunteered to return to Iraq for a second tour because the 224th Medical Detachment had no mechanic.  He reenlisted while in Iraq and he was supposed to have a one-year stabilization from August 2005 to August 2006
* he tried to take leave in March 2005 to reconcile with his wife who was in California.  He had lost his family, could not do anything about it, and he became depressed.  He finally got leave in July 2005.  The first sergeant went out of her way to call him in California to tell him he had orders to Korea
* around this time he noticed he was being treated differently.  He was the only Mexican-American in the unit.  There were five black Soldiers, including the first sergeant.  The commanding officer and the executive officer were white.  When he made an issue of his orders the first sergeant really got on his case
* he caught a virus and the first sergeant gave him a hard time when the illness interfered with his performance.  He had forgotten to turn in a 


collapsible baton he had been issued in Iraq.  A check point found it and the military police (MPs) called the first sergeant.  A few days later she charged him with having a weapon, even though the MPs had not charged him.  They gave him nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) and reduced him to specialist
* after that he was treated even worse.  He was assigned every detail that occurred.  The first sergeant insisted that he was the only Soldier who had any problems with her.  She knew he did not want to go to Korea, but would do nothing to help him.  He had lost his family.  Being gone for
3 years back-to-back was just too much.  He believes she approved his leave knowing that he would end up being absent without leave (AWOL)

3.  The applicant provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 7 September 2000.  He completed training as a wheeled vehicle mechanic and he was advanced to the rank/grade of specialist (SPC)/E-4.

2.  He was awarded the Army Commendation Medal for meritorious achievement while serving in Iraq from 19 March through 21 April 2003.  The applicant reenlisted in April 2004 and he received a 1-year current station stabilization at Fort Hood, TX to commence 1 April 2005.  On 1 July 2004, he was promoted to sergeant (SGT)/E-5.  He was awarded another Army Commendation Medal for meritorious achievement while serving in Iraq from 7 January through 31 December 2004.

3.  The applicant was reduced to SPC/E-4 on 1 September 2005.  The basis for his reduction is not contained in the available records. 

4.  He was AWOL from the 224th Medical Detachment, 36th Medical Evacuation Battalion on 22 November 2005.  He was subsequently apprehended by civilian authorities in Killeen, TX on 13 March 2006.

5.  On 14 August 2006, the applicant pled guilty before a general court-martial for being AWOL from on or about 21 October 2005 until on or about 13 March 2006.  By Headquarters, Fort Hood, General Court-Martial Order Number 2, dated
11 January 2007, the applicant was sentenced to reduction to private (PV1)/E-1, confinement for four months, and discharge from the service with a BCD.

6.  The sentence was approved and, except for the BCD, ordered executed.  The U.S. Army Court of Criminal Appeals corrected the court-martial order by changing the name of the general officer on the "BY COMMAND OF" line.

7.  On 21 September 2007, Article 7(c), UCMJ, having been complied with, the BCD was ordered executed.

8.  The applicant was discharged with a BCD on 29 January 2008.  He had 6 years and 7 months of total active service and 205 days time lost due to AWOL and confinement.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Paragraph 3-7b of the regulation 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 believes that the leadership of his unit was prejudiced against him because he was a Mexican-American.  He had family problems and received no support.  He believes the first sergeant approved his leave knowing he would go AWOL.


2.   The applicant's military accomplishments and service up to the time of his misconduct are acknowledged.  However, he has provided no substantiation for any of his assertions of family problems, racial prejudice, or a personal vendetta by the first sergeant.

3.  Therefore, none of the details contained in his personal statement provide a sufficient basis for clemency in the form of upgrading the characterization of the discharge.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's court-martial conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

5.  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 absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  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 requirement.

7.  In view of the foregoing there is no basis for granting the applicant's requested relief.
 
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)                                         AR20090021399



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ABCMR Record of Proceedings (cont)                                         AR20090021399



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