IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20110025179 


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 that his bad conduct discharge (BCD) be upgraded and his records be corrected to show his foreign service.

2.  The applicant states he served in Iraq and he was not available to sign his  DD Form 214 (Certificate of Release or Discharge from Active Duty) and make sure it was complete.  He has changed his ways and is not the man he was.  He now goes to church and is working.

3.  The applicant provides copies of a letter stating he is actively seeking employment, copies of photographs of several Soldiers, two certificates of training, an Order of the Spur Certificate, two letters of support, and a DD Form 293 (Application for the Review of Discharge from the  Armed Forces of the United States).

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 enlisted in the Regular Army on 28 June 2002, completed training, and was awarded the military occupational specialty 19K (M1 Armor Crewman).

3.  A review of his pay record shows service in Kuwait/Iraq from 21 January 2003 through 10 August 2003 (6 months and 21 days).

4.  On 19 July 2004, in accordance with his pleas, a special court-martial found the applicant guilty of willfully damaging a military police vehicle, willfully damaging a fellow Soldier's vehicle, being drunk on duty, wrongfully appropriating a Military Star Card, and assaulting a fellow Soldier.  The adjudged sentence was reduction to pay grade E-1; forfeiture of $795.00 pay per month for seven months; and a bad-conduct discharge.

5.  The convening authority approved the findings and sentence but suspended the execution of five months of the period of confinement for five months.

6.  The applicant requested and was placed on excess leave (for 805 days) pending appellate review of his court-martial.

7.  On 14 September 2006, Article 71(c) of the Uniform Code of Military Justice having been complied with, the BCD was ordered executed and the applicant was accordingly discharged.

8.  The applicant was discharged on 31 January 2007.  He had 4 years, 1 month, and 5 days of creditable active service with 805 days served in excess leave and 122 days of lost time due to confinement.  His DD Form 214, at item 12f (Foreign Service), is blank and item 18 (Remarks) does not include a deployment entry. 

9.  The applicant provides a February 2004 certificate showing completion of a two-day Alcohol and Drug Abuse Prevention course and a March 2009 certificate showing completion of a 240-hour Air Conditioning and Refrigeration course.

10.  A statement, dated 7 October 2011, from the Alabama Career Center System states the applicant has been making a good faith effort to seek employment. 

11.  The letters of support state the applicant is a good person who has been trying to better himself for his family and has been actively seeking employment.  He has turned his life around and is no longer the person he used to be.
12.  On 26 October 2010, the Army Discharge Review Board denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and states:

	a.  the total amount of foreign service completed during the period covered by the DD Form 214 is entered at item 12f; and 

	b.  item 18 is for HQDA mandatory requirements when a separate block is not available and as a continuation for entries in blocks 11, 13, and 14.  For an active duty Soldier deployed with his or her unit during their continuous period of active service, enter the following statement:  "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates for example, YYYYMMDD - YYYYMMDD)." 

14.  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 letters attesting to the applicant's good character and his post-service adjustment and conduct are noted, but they are insufficient as a sole basis for relief because they do not appear to outweigh the repeated misconduct that led to the applicant's separation.

2.  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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's service in Kuwait/Iraq was not included on his DD Form 214.  It is appropriate to correct this error at both item 12f and item 18 to show foreign service from 21 January 2003 through 10 August 2003 (6 months and 21 days).


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 correcting his DD Form 214 to show at:

	a.  item 12f,  00  06  21; and 

	b.  item 18, "SERVICE IN KUWAIT/IRAQ FROM 20030121 - 20030810." 

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 BCD.



      _______ _   _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)                                         AR20110025179



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ABCMR Record of Proceedings (cont)                                         AR20110025179



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