IN THE CASE OF:	  

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140001502 


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 that his bad conduct discharge (BCD) be upgraded to an honorable discharge.

2.  He states that he would like to once again apologize to his chain of command, starting with his Commander-in-Chief all the way down to his platoon sergeant.  He would also like to apologize to his Soldiers at the time and to most of his family.  He is requesting this upgrade because he has finally, after all these years, built up enough courage to say to himself "Finish what you started."  If he could turn back the hands of time, he would.  If he was given an opportunity to reenlist, he would.  If he was given the opportunity to prove himself before a panel of any kind, he would.  The bottom line is "I screwed up."  He is willing to do whatever it takes to restore the faith of his chain of command and the U.S. Armed Forces.

3.  He provides no additional 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 initially enlisted in the Regular Army on 5 September 1990.  He served in a variety of assignments and deployed to Southwest Asia from 1 March to 29 October 1991.

3.  After having a break in service, he enlisted in the Regular Army on 20 August 1997.  The highest rank/grade he attained while serving on active duty was staff sergeant (SSG)/E-6.

4.  His disciplinary history includes his receipt of a General Officer Memorandum of Reprimand (GOMOR), dated 10 June 1998, following his apprehension by civilian police and being cited for driving under the influence of alcohol, speeding, driving with a suspended license, and disorderly conduct.  This GOMOR is filed in the Performance folder of his Official Military Personnel File (OMPF).

5.  On 21 August 2001, the applicant departed his unit in an absent without leave (AWOL) status and was dropped from the unit rolls effective 22 September 2001.

6.  The applicant remained AWOL until he was apprehended by civilian authorities on 4 July 2003.  He was returned to military control on the same date.

7.  General Court-Martial (GCM) Order Number 36, Headquarters, 7th Infantry Division and Fort Carson, Fort Carson, CO is not present in the applicant's OMPF.  However, GCM Order Number 6, published by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, dated 20 January 2005, shows the sentence of reduction to the rank/grade of PV1/E-1, confinement for 6 months, and a BCD, adjudged on 5 September 2003, as promulgated in GCM Order Number 36, Headquarters, 7th Infantry Division and Fort Carson, Fort Carson, CO, dated 12 November 2003, as corrected by U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 22 July 2004, was finally affirmed.  Article 71(c) having been complied with, the BCD was ordered to be executed.  The accused was credited with 63 days of confinement and credit against the sentence to confinement.  That portion of the sentence extending to confinement had been served.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 2 December 2005 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 as a result of court-martial.  This form also shows his character of service as "Bad Conduct."

9.  Army Regulation 635-200:

	a.  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.  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.  Paragraph 3-7c provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial.

	d.  Paragraph 3-11 provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request is duly noted.  However, it is not sufficiently mitigating to absolve his misconduct during his period of service.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.
3.  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.

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)                                         AR20140001502



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ABCMR Record of Proceedings (cont)                                         AR20140001502



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