IN THE CASE OF:	  

		BOARD DATE:	    30 September 2010

		DOCKET NUMBER:  AR20100008053 


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 his bad conduct discharge (BCD) be upgraded.

2.  The applicant states it has not been a day since his court-martial that he has not regretted the decision he made to go absent without leave (AWOL) without discussing his reasons with his chain of command.  He explains that his wife disappeared with his children because he deployed to Bosnia and he felt lost and alone.  The applicant offers he has tried to serve his community by volunteering for the Central Florida Youth Football League, participating in fund raisers, and coaching in an effort to repay the debt he feels he owes.  He states he realizes that his good deeds are hard to compare to the misguided decisions he made while he was in the Army.  He concludes by stating that there are more ways he would like to serve his community, but his discharge precludes him from serving in the law enforcement field. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 record shows he enlisted in the Regular Army on 5 June 1997.  

3.  A corrected copy of General Court-Martial Order Number 7, dated 12 July 2000, shows the applicant was found guilty of Article 87 of the Uniform Code of Military Justice (UCMJ) for missing movement.  His punishment consisted of confinement for 100 days, a forfeiture of all pay and allowances, reduction to the rank of private (E-1), and a BCD.  The sentence was adjudged on 10 August 1999.

4.  On or about 9 November 2000, U.S. Army Court of Criminal Appeals affirmed the sentence and made the following corrections to the corrected copy of General Court-Martial Order Number 7, dated 12 July 2000:

* Reflect that Charge I should be The Charge
* Reflect that Additional Charge I should be The Additional Charge 

5.  The applicant's DD Form 214 shows he was discharged on 14 November 2001 with a BCD.  The authority and reason are listed as chapter 3, Section IV, Army Regulation 635-200.  The applicant had completed 3 years, 4 months, and 20 days of total active service.  He also had three periods of lost time from
10 August 1998 to 7 March 1999, 8 March to 6 June 1999, and 7 June to
24 August 1999.

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable or BCD.  It also provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial; and, the appellate review must be completed and the affirmed sentence must be ordered duly executed.

7.  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.
8.  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.

9.  Court-martial convictions stand as adjudged or as 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 available evidence shows the applicant was convicted by a general court-martial of missing movement.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed by the court-martial.  After a thorough review of the applicant’s record and his contentions no basis for granting clemency was found in this case. 

2.  The applicant contends he went AWOL due to his wife's disappearance with their children.  However, there is no evidence and he has not provided any to substantiate his claim.  Additionally, the applicant's contributions to his community and his desire to serve the community in a greater capacity were considered.  However, good post-service conduct alone is not a basis for upgrading his discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100008053



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR201