IN THE CASE OF:	   

		BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011998 


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 (BCD) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show award of the Purple Heart.

2.  The applicant states he was awarded the Purple Heart and the Department of Veterans Affairs (VA) determined he had honorable military service.

3.  The applicant provides copies of his award documents, DD Form 214, and a letter from the VA.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 30 March 2004 for a period of 
3 years and 17 weeks.

2.  A review of the applicant's Army Military Human Resource Record (AMHRR) shows a DA Form 4980-10 (Purple Heart Certificate) and Headquarters, U.S. Army Human Resources Command, Permanent Orders 171-10, dated 20 June 2011, that awarded the applicant the Purple Heart for wounds received as a result of hostile action in Iraq on 15 November 2006.

3.  The review of his AMHRR failed to show any evidence he extended the period of his enlistment or that he reenlisted in the RA.

4.  A DA Form 4430 (Department of the Army Report of Results of Trial) shows the applicant was convicted at a special court-martial of:

* being absent without authority from:

* 15 July 2008 to 29 December 2008
* 6 January 2009 to 19 August 2009
* 19 August 2009 to 9 August 2010

   a.  On 16 December 2010, he was sentenced to reduction to private (E-1), confinement for 3 months, and a BCD.

   b.  On 30 December 2010, the special court-martial convening authority approved the sentence and, except for the part of the sentence extending to the BCD, ordered the sentence duly executed.

5.  He was confined from 16 December 2010 through 27 February 2011.

6.  The applicant's AMHRR does not contain a copy of the special court-martial orders announcing or affirming the results of the court-martial.

7.  A DD Form 214 shows the applicant was discharged with a BCD on 
17 February 2012 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial (other).

   a.  He had completed 5 years, 7 months, and 19 days of net active service.

   b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) does not show the Purple Heart.

   c.  Item 18 (Remarks) shows he had time lost under Title 10, U.S. Code, section 972, from 15 July 2008 through 28 December 2008, 6 January 2009 through 8 August 2010, and 16 December 2010 through 27 February 2011.  It also shows he was in an excess leave status from 28 February 2011 through
17 February 2012.

8.  In support of his request the applicant provides a copy of a VA Regional Office, San Diego, CA, letter, dated 9 May 2013, that shows the VA determined that the applicant enlisted in the U.S. Army on 30 March 2004 and reenlisted on 13 November 2006.  The VA decided his military service for the period 30 March 2004 to 17 February 2012 is considered honorable.

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

   a.  Chapter 3, 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.

   b.  Chapter 3, 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.

   c.  Chapter 3, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of the appellate review and after such affirmed sentence had been ordered duly executed.

10.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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.    

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected because he was awarded the Purple Heart and his BCD should be upgraded because the VA determined he had honorable service from 30 March 2004 to 17 February 2012.

2.  Permanent orders awarded the applicant the Purple Heart for wounds received as a result of hostile action in Iraq on 15 November 2006.  Therefore, his DD Form 214 should be corrected to show the award.
3.  The evidence of record shows the applicant entered active duty on 30 March 2004 and he was convicted at a special court-martial in December 2010.

   a.  He had time lost from 15 July 2008 through 28 December 2008, 6 January 2009 through 8 August 2010, and 16 December 2010 through 27 February 2011.

   b.  He was in an excess leave status from 28 February 2011 through 
17 February 2012.

   c.  He was discharged with a BCD on 17 February 2012.

4.  The fact that the VA determined he had honorable military service from 
30 March 2004 to 17 February 2012 is a prerogative of the VA.  However, the determination by the VA that the applicant's service was honorable while he was in an AWOL status (beginning 15 July 2008), followed by confinement, and then in an excess leave status through the date he was discharged with a BCD is not a basis for upgrading the applicant's character of service.

5.  In the absence of evidence to the contrary, it is concluded that the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

6.  In view of all of the foregoing, the applicant's character of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or general discharge.

7.  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.

8.  Based on the evidence of record, it is concluded that the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

9.  In view of the foregoing, there is no basis for granting the applicant's request for upgrade of his discharge.



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 adding to his DD Form 214 the Purple Heart.

2.  The Board further determined that the evidence presented was 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 an upgrade of his discharge.




      _____________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)                                         AR20130011998



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ABCMR Record of Proceedings (cont)                                         AR20130011998



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