IN THE CASE OF:	  

		BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20130018045 


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 it has been hard for him and his family.  He has been looking for gainful employment but no company would hire him with such a characterization of service.  He believes an upgrade of his discharge would help him find a job and get housing.  

3.  The applicant does not provide any evidence. 

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's records show he enlisted in the Regular Army on 23 April 2002.  He was trained in and held military occupational specialty 11B (Infantryman). 

3.  He was awarded or authorized the National Defense Service Medal and the Army Service Ribbon. 

4.  On 23 September 2003, he departed his Fort Benning, GA, unit in an absent without leave (AWOL) status and on 22 October 2004, he was dropped from the rolls as a deserter.  He was apprehended by civil authorities in Lafayette, LA, and ultimately returned to military control on 29 March 2005. 

5.  On 29 November 2005, he was convicted by a general court-martial of one specification of being AWOL from 23 September 2003 to 29 March 2005.  The court sentenced him to a bad conduct discharge, confinement for 6 years, and a reduction to the lowest enlisted grade. 

6.  On 6 April 2006, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On 27 March 2007, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 193, dated 13 September 2007, shows the convening authority ordered the applicant's bad conduct discharge duly executed after completion of all required post-trial and appellate reviews.

9.  He was discharged on 29 February 2008.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of a court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a bad conduct discharge.  His DD Form 214 shows he completed 3 years, 11 months, and 24 days of active service.  He also had lost time from 23 September 2003 to 28 March 2005 and 29 November 2005 to 6 April 2006.

10.  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.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by a general court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this 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.

4.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  He is not entitled to the requested relief.





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)                                         AR20130018045





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ABCMR Record of Proceedings (cont)                                         AR20130018045



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