IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120007119 


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 discharge to honorable. 

2.  He states, "They got me for [being absent without leave (AWOL)] and I sent out a distress call to my next in my chain [of command] but it was ignored."  

3.  He provides:

* a letter from the Department of Veterans Affairs (VA) Eastern Colorado Health Care System
* a self-authored statement
* the front cover of a Verbatim Record of Trial
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* an Honorable Discharge Certificate.

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.  On 1 February 2000, the applicant enlisted in the Regular Army (RA) for a period of 3 years.  His DA Form 2-1 (Personnel Qualification Record) shows that, after completing initial entry training, he was awarded military occupational specialty 11B (Infantryman).  On 19 July 2000, he was assigned to the 1st Battalion, 325th Airborne Infantry Regiment (AIR), Fort Bragg, NC.  

3.  On 17 April 2002, he reenlisted in the RA for a period of 6 years.  His record shows he was promoted to sergeant (SGT)/E-5 effective 1 July 2003.

4.  A history of the 325th AIR shows the unit returned to Fort Bragg, NC, in February 2004 following nearly a year of sustained combat operations in Iraq.

5.  His record documents no acts of valor, significant achievement or service warranting special recognition.  

6.  His record contains the following orders issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC.

	a.  General Court-Martial Order Number 5, dated 22 February 2005, shows he was found guilty of:

* being AWOL from 7 March to 22 April 2004
* wrongfully possessing approximately 75 grams of marijuana
* wrongfully possessing certain instruments purporting to be an official U.S. Permanent Residency Card and Social Security Card
* unlawfully carrying a concealed weapon on or about his person

   b.  He was sentenced to be discharged with a bad conduct discharge (BCD), to be confined for 15 months, and to be reduced to the grade of E-1.  The sentence was approved and except for that part of the sentence extending to a BCD the sentence was ordered to be executed.

	c.  General Court-Martial Order Number 18, dated 3 June 2005, shows his sentence was approved and his BCD was ordered to be executed.  

7.  On 24 January 2006, he was discharged in accordance with his approved sentence.  

8.  He provides a letter from the VA Eastern Colorado Health Care System requesting approval of his application for a "Special Discount Program."  The letter states he has been diagnosed with post-traumatic stress disorder, which prevents him from finding and maintaining employment.

9.  In his self-authored statement, he requests revision of the character of his service and briefly summarizes the events that transpired during the period in question.  He states he went on leave to visit his parents shortly after returning from serving in Baghdad, Iraq.  While on leave, he had an entanglement with civilian authorities.  He contacted a superior in his chain of command, Sergeant First Class V., who denied his request for assistance.  As a result he fell into disarray.  He continues, stating he enlisted to serve his country as his father had during the Vietnam conflict.  His father's guidance was to graduate from high school, complete a tour of duty for his country and receive an honorable discharge, and then go on for an advanced degree.  He states he now needs education assistance to accomplish this goal.   

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or BCD) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  Paragraph 3-7a provides that an honorable discharge (HD) 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.

	c.  Paragraph 3-7b provides that a general discharge (GD) 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.

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 evidence of record does not support the applicant's request for an upgrade of his discharge.  

2.  He states a noncommissioned officer in his chain of command denied his request for assistance, which resulted in him falling into disarray.  There is no evidence indicating his chain of command improperly denied him assistance.  

3.  His record shows he was convicted of being AWOL, wrongfully possessing marijuana, wrongfully possessing instruments purporting to be an official U.S. Permanent Residency Card and Social Security Card, and unlawfully carrying a concealed weapon.  His conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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

5.  In view of the foregoing, there is no basis for granting the relief he requests.

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)                                         AR20120007119





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ABCMR Record of Proceedings (cont)                                         AR20120007119



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