IN THE CASE OF:  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20120001589 


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.

2.  The applicant states:

* he was immature at the time
* he requested leave on two occasions to see his ailing father, but was denied leave
* he took matters in his own hands and went absent without leave (AWOL)
to take care of his father
* he suffered from anxiety and depression and turned to drugs when his father's condition worsened 
* his father convinced him to turn himself into military authority 
* once under military control he overheard his superiors talking about jail time for his actions
* he became scared and unsure of his decisions and went AWOL again, but was picked up in two weeks and returned to his unit
* he was court-martialed and given 14 months of confinement, but only completed 9 months because he was released for good behavior and completion of classes on anger management and stress management
* he has not been in trouble with the law since discharge
* he volunteered in landscaping for the underprivileged, the local shelter, and assisting the elderly 
* he has steady employment with a landscaping firm and part-time pizza delivery services
* he is starting a family and realizes he needs to correct his wrongs with the military in order to bring a close to his negative events and continue to be positive  with his family, friends, and community

3.  The applicant provides:

* self-authored statements
* self-authored letter to the separation authority, undated
* character letter
* 2 certificates of training  

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 March 2005.  He completed training and was awarded military occupational specialty 92F (Petroleum Supply Specialist).  The highest rank/grade he attained while on active duty was private/E-2. 

3.  Orders Number 010-10, Headquarters, 4th Infantry Division (Mechanized), Fort Hood, TX, dated 10 January 2006, directed the applicant's temporary change of station from Fort Hood, TX, to the Central Command area of responsibility in support of Operation Iraqi Freedom for a period of 365 days.

4.  On 7 February 2006, the applicant went AWOL.  On 14 February 2006, the applicant was dropped from the rolls due to avoiding hazardous duty.

5.  A DA Form 4187 (Personnel Action), dated 23 March 2006, shows the applicant's status changed from dropped from the rolls to PDY (present for duty) and he was returned to the unit by Maryland police authorities on 23 March 2006, effective 0630 hours.

6.  A DA Form 4187, dated 27 March 2006, shows the applicant's status changed from present for duty to AWOL, effective 2200 hours.

7.  A DD Form 458 (Charge Sheet), dated 28 March 2006, shows the applicant was charged with desertion and AWOL.

8.  A DA Form 4187, dated 28 March 2006, shows the applicant's status was changed from AWOL to dropped from the rolls due to avoiding hazardous duty, effective 0630 hours, 28 March 2006.

9.  A DA Form 4187, dated 7 April 2006, shows the applicant surrendered to civilian authorities who returned him to military control on 6 April 2006, effective 1800 hours.  The applicant status was changed from dropped from the rolls to present for duty and he was placed in a pre-trial confinement awaiting court-martial.

10.  General Court-Martial Order Number 11, Headquarters, Fort Hood, Fort Hood, TX, dated 15 February 2007, shows the following charges and findings:

   a.  Charge I.  Article 85.  Plea:  Not Guilty.  Finding:  Guilty

The Specification:  Did, on or about 6 February 2006, with the intent to shirk important service, namely:  preparation for and deployment, in support of Operation Iraqi Freedom, quit his unit and did remain so absent in desertion until he was apprehended on or about 21 March 2006.  Plea:  Not Guilty, but Guilty to the lesser included offense of AWOL.  Finding:  Guilty.

   b.  Charge II.  Article 86.  Plea:  Guilty.  Finding:  Guilty.
   
The Specification:  Did, on or about 26 March 2006, without authority, absent himself from his until and did remain so until he was apprehended on or about 6 April 2006.  Plea:  Guilty.  Finding:  Guilty.

	c.  Charge III.  Article 112a.  Plea:  Guilty.  Finding:  Guilty.

Specification 1:  Did, at or near Fort Hood, TX, and/or at or near Cumberland, MD, between on or about 24 February 2006 and 24 March 2006, wrongfully use marijuana.  Plea:  Guilty.  Finding:  Guilty. 
   
Specification 2:  Did, at or near Fort Hood, TX, and/or near Cumberland, MD, between on or about 17 March 2006 and 24 March 2006, wrongfully use cocaine.  Plea:  Guilty.  Finding:  Guilty.
	d.  Additional charge:  Article 112a.  Plea:  Guilty.  Finding:  Guilty.

The Specification:  Did, at or near Fort Hood, TX, and/or at or near Cumberland, MD, between on or about 25 March 2006 and 7 April 2006, wrongfully use marijuana.  Plea:  Guilty.  Finding:  Guilty.

   e.  His sentence was adjudged on 11 July 2006.  He was sentenced to a reduction to the rank/grade of private/E-1, total forfeiture of all pay and allowances, confinement for 14 months, and a bad conduct discharge.  The sentence was approved and except for the part of the sentence extending to a bad conduct discharge was executed.  He was credited with 219 days of confinement against the sentence to confinement.  

11.  General Court-Martial Order Number 337, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 25 November 2007, shows the applicant's sentence was affirmed and the approved sentence to a bad conduct discharge was ordered to be duly executed.  He was accordingly discharged on 29 February 2008.

12.  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's personal circumstances at the time, including his father's health are noted.  However, his military career was marred with multiple instances of AWOL, desertion, and drug usage.

2.  Based on his overall record of indiscipline, 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, the applicant is not entitled to an upgraded 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)                                         AR20120001589



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ABCMR Record of Proceedings (cont)                                         AR20120001589



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