IN THE CASE OF:	  

		BOARD DATE:  6 November 2012

		DOCKET NUMBER:  AR20120008910 


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 to an honorable discharge.

2.  The applicant states:

	a.  He was on leave visiting his mother in Omaha, NE, when he got a call from a sergeant (SGT) at the 1st Replacement Company, Fort Riley, KS, and he was told he was absent without leave (AWOL) from the unit.  He told the SGT he had orders to report to Fort Lewis, WA, and he would send him the orders.  However, he was told he needed to go to Fort Riley and took a bus there.  He called from the bus station and the military police picked him up and took him to the unit.  He was told he had been reported AWOL and that meant his pay had been suspended.  He asked to see the assignment orders to Fort Riley, but he was told they did not have physical orders; the orders were in the system.

	b.  He attempted to get emergency pay but it was denied as he did not have orders for Fort Riley.  When he reported back to the unit they told him he would be on detail since he did not have orders and since they had nowhere to put him this would be a way for the Army to make use of him and for him to earn his pay.  He was at Fort Riley for 2 months and each week he was told they were working on getting him to Fort Lewis.  He tried to get assistance from the chain of command but after not getting paid and being behind on his bills, he decided to leave.


	c.  In 2004, he was chaptered and discharged from the Army dishonorably, even after his lawyer tried to show the court that he was not supposed to be assigned to Fort Riley.  He was court-martialed and told he would be put on leave for the remainder of his enlistment and they would mail him his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He did not receive his DD Form 214 until April 2010 and he was finally discharged from the Army.

	d.  He has three children and has not had a relationship with them since 2004 because he has not been able to provide for them.  This cloud over his head keeps him from obtaining a job.  He has been suffering unjustly; he knows he did wrong but he was let down by the chain of command.  It has been 8 years since this has happened and he has been suffering every year.  He has not been able to have a life, provide a life for his children, or help his mother who is on disability.  He has tried to maintain a positive attitude and he has not done anything illegal, even though he is suffering financially, emotionally, and mentally.

3.  The applicant provides a statement of support.

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the applicant enlisted in the Regular Army on 25 January 2002 and he held military occupational specialty 11B (Infantryman).  He enlisted for a period of 3 years and for the station of choice option for assignment to Fort Lewis.

2.  His records contain a DA Form 4187 (Personnel Action) that shows on 15 October 2002, he was reported AWOL from the 1st Replacement Company, Fort Riley, when he failed to report for corrective training.  On 15 November 2002, he was dropped from the rolls.

3.  On 14 April 2004, he was apprehended by civil authorities in Lincoln, NE, and was returned to military control at Fort Riley.  It appears he may have again gone AWOL from Fort Riley for 8 days after being returned to military control.

4.  On 16 June 2004, he was convicted by a special court-martial of being AWOL from on or about 15 October 2002 to on or about 22 April 2004.

5.  He was sentenced to confinement for 7 months, forfeiture of $795.00 pay per month for 7 months, reduction to private (PV1)/E-1, and a bad conduct discharge.


6.  Special Court-Martial Order Number 9, issued by Headquarters, 24th Infantry Division (Mechanized), Fort Riley, dated 4 August 2005, shows the applicant's sentence had been affirmed and the sentence adjudging confinement in excess of 90 days was suspended for 90 days at which time it would be remitted.  The applicant was credited with 64 days of confinement and, Article 71(c) having been complied with, the convening authority ordered his bad conduct discharge executed.

7.  On 30 April 2010, he was accordingly discharged from the Army.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial, with a bad conduct discharge.  He completed 7 years, 7 months, and 27 days of net active service during this period of service, with 2,136 days of excess leave and 620 days of time lost due to AWOL and confinement.

8.  On 11 May 2011, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined there was no cause for clemency.

9.  The applicant provides a statement of support, dated 18 April 2011, wherein an Army Human Resource Assistant at Fort Riley, KS, stated, based on the applicant's enlistment contract, he was supposed to have been assigned to Fort Lewis; therefore, he should not have been charged with AWOL by Fort Riley.

10.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.


	c.  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.  

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 Army Board for Correction of Military Records 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 shows the applicant's trial by a special court-martial was warranted by the gravity of the offense charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  Notwithstanding the applicant's assertion that he had orders assigning him to Fort Lewis, there is nothing to support this contention.  In addition, he could have raised this point as an issue to be considered in mitigation during the court-martial or appellate process.  

2.  The evidence of record shows he was reported AWOL from Fort Riley, KS, and he was AWOL for over 18 months before being apprehended and returned to military control.  This misconduct renders his service unsatisfactory.

3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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 the applicant's undistinguished record of service and 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.


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)                                         AR20120008910



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ABCMR Record of Proceedings (cont)                                         AR20120008910



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