IN THE CASE OF:	  

		BOARD DATE:	  8 March 2012

		DOCKET NUMBER:  AR20110014418 


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 to an honorable discharge.

2.  He states he received a general court-martial in 2001 in which he pleaded guilty to being absent without leave (AWOL) to avoid being charged with other allegations.  He provides a brief synopsis of his military service and explains that he was an infantry Soldier assigned to a Ranger Battalion shortly after completing advanced individual training, airborne school, and the Ranger Introductory Program.  He maintains that after his assignment to the 1st Battalion, 75th Ranger, he was reassigned to a mechanized unit where he felt useless to himself, the unit, and to the Army.  

   a.  He offers that during his assignment in the mechanized unit, he was attacked and severely beaten by four members of his squad who were led by his squad leader.  He adds that as a result of the altercation, he incurred a blood clot in the right cerebellum of his brain.  This blood clot caused him to have a severe stroke and led to him receiving a permanent profile.  He adds that even with his disabilities, he reenlisted, completed an overseas assignment in Italy, and returned to Fort Bragg, NC where he worked in the protocol section.  However, due to budget cuts, he states his position in protocol was eliminated.

	b.  He states he was reassigned to the 1st Battalion, 504th Parachute Infantry Regiment and reported to the battalion's command sergeant major (CSM).  He 

adds he reported his profile status to the CSM and the CSM deemed him "useless."  He offers that the CSM instructed him to go home until he was called. He maintains he checked in with the CSM on several occasions and was given a direct order by the CSM to go home until he was called.  He says while he was in limbo, he acquired a civilian job working at an auto parts store.  He adds that one particular day, the CSM entered the auto parts store.  He explains that he and the CSM engaged in a conversation.  He says that several months later, he received a phone call from the CSM instructing him to return to duty the following morning for a new position.  

	c.  He states when he arrived the following morning, he was questioned and informed that he was being formally charged with AWOL, grand larceny, and forging an official government document.  He adds he was instructed that if he pleaded guilty for being AWOL, the grand larceny charge would be dropped.  He states that it has been over a decade since his punishment and he has made strides to better himself.  He adds he has graduated with an associate's degree and he is pursuing a bachelor's degree in organizational leadership.

3.  He provides a self-authored statement and 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 
17 November 1993.  He served in Italy from 22 October 1996 to 29 June 1999.

3.  On 17 May 2001, he was convicted by a general court-martial of being AWOL from 21 March 2000 to 6 November 2000.  The court sentenced him to reduction 

the grade of E-1, confinement for 4 months, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on an unknown date.  The BCD was ordered executed on 15 August 2003.

4.  His DD Form 214 shows he was discharged with a BCD on 26 September 2003 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3.  He had completed 9 years, 6 months, and 28 days of total active service.  

5.  Army Regulation 635-200 sets 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 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence must be ordered duly executed.

6.  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.

7.  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.  

8.  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.  There is no evidence and he has not provided any to show he was allowed to stay at home until he was called by his CSM.  The evidence of record shows the 

applicant was convicted by a general court-martial of being AWOL from 21 March 2000 to 6 November 2000.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 his undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  Additionally, the fact that he has turned his life around and has obtained his associate's degree and working towards his bachelor's degree is commendable.  However, good post-service conduct alone is not a basis for upgrading his discharge.

6.  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)                                         AR20110014418





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ABCMR Record of Proceedings (cont)                                         AR20110014418



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