IN THE CASE OF:	  

		BOARD DATE:  10 September 2013

		DOCKET NUMBER:  AR20130001893 


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 reconsideration of the Board's denial of his previous request for an upgrade of his bad conduct discharge to an honorable discharge.

2.  The applicant states he reenlisted in the Regular Army in 2002 for the option of his initial duty station of choice of Fort Lewis, WA.  During military occupational specialty training he suffered an intestinal hernia which required immediate surgery.  He was placed on 30 days of medical leave after the operation.  Upon expiration of his leave, he returned to his training company and he was informed that his training was considered to be complete and orders were generated to send him to Fort Campbell, KY.  The reporting date in the orders conflicted with the period he was on leave and he was listed as being absent without leave (AWOL) from Fort Campbell, automatically resulting in suspension of his pay and issuance of a warrant for his arrest.

	a.  He then completed training.  While on leave following training, he was contacted by the 1st Replacement Company, Fort Riley, KS, and informed they had orders in their system for him to report to them.  He had orders with a reporting date to Fort Lewis in his possession.  Upon his arrival at Fort Riley, he was informed that he would be going to his duty station at Fort Lewis in 2 days.  Those 2 days turned into 2 1/2 months.  During that time his pay was suspended a second time.  His chain of command did not assist him with personal issues (child support, military pay, and getting him to his duty station).  This chain of events led him to leave in an attempt to obtain pay to provide for his children and himself.

	b.  From that time on he was under the impression he had been discharged from the Army.  To his surprise while being pulled over for a routine traffic stop, he learned that he was still listed as an AWOL active duty Soldier.  Upon return to Fort Riley, the 1st Replacement Company Commander, after contacting the Judge Advocate General's office, advised him that he should not have been discharged or held at Fort Riley and he should have been released to go to his duty station since orders in-hand outweighed any other form of orders.

	c.  In closing, he was wrongfully discharged from the Army and held at a base for which there were no orders of assignment in direct violation of his enlistment contract and his physical orders for Fort Lewis.

3.  The applicant provides:

* Self-authored statement
* enlistment documents
* DD Form 2366 (Montgomery GI Bill Act of 1984)
* Operation Report, Martin Army Community Hospital, Fort Benning
* locator display screen printouts
* three DA Forms 4187 (Personnel Action)
* DD Form 553 (Deserter/Absentee Wanted by the Armed Forces)
* DD Form 458 (Charge Sheet)
* letter from the AWOL/Dropped from Rolls (DFR) Human Resource Assistant, Headquarters, U.S. Army Garrison, Fort Riley

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120008910 on 6 November 2012.

2.  The self-authored statement and Operation Report from the Martin Army Community Hospital, Fort Benning, provided by the applicant are new evidence which warrant consideration by the Board.

3.  Having prior active service, he enlisted in the Regular Army on 25 January 2002.  He enlisted for a period of 3 years and assignment to Fort Lewis.

4.  He provides an Operation Report showing he underwent surgery at the Martin Army Community Hospital at Fort Benning on 8 March 2002 for an incarcerated umbilical hernia.

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

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

7.  On 16 June 2004 pursuant to his plea of guilty, he was convicted by a special court-martial of being AWOL from 15 October 2002 to 22 April 2004.

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

9.  Headquarters, 24th Infantry Division (Mechanized) and Fort Riley, Special Court-Martial Order Number 9, 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.  He was credited with 64 days of confinement and, Article 71(c) having been complied with, the convening authority ordered his bad conduct discharge executed.

10.  On 30 April 2010, he was discharged accordingly from the Army.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, by reason of court-martial with a bad conduct character of service.  He completed 7 years, 7 months, and 27 days of net active service during this period with 2,136 days of excess leave.  His DD Form 214 shows time lost during the periods 15 October 2002 through 13 May 2003 and 16 through 25 June 2004 due to AWOL and confinement.

11.  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.

12.  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.

13.  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 applicant contends that he had orders assigning him to Fort Lewis.  However, there is no evidence 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.  The evidence of record shows his trial by a special court-martial was warranted based on the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.

2.  The evidence of record shows he was AWOL for over 18 months before being apprehended and returned to military control.  This misconduct rendered 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 were therefore 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120008910, dated 6 November 2012.



      _______ _  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)                                         AR20130001893



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ABCMR Record of Proceedings (cont)                                         AR20130001893



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