IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140001756 


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 at least a general discharge with a more favorable narrative reason for separation.

2.  The applicant states he desires to become a more productive member of society.  He is currently an emergency medical technician (EMT) and is attending school to become a paramedic with the ultimate goal of being able to give back to military personnel by working with a local Department of Veterans Affairs (VA) facility in a civilian capacity.  However, because he received a BCD, it would be almost impossible for him to do so.  He is not implying that he did not deserve a BCD, but he completed the imposed sentence and cannot ever wear a military uniform again, which is a lifelong punishment.  Accordingly, he is asking that the Board grant his request and allow him to give back to the military. 

3.  The applicant provides copies of his EMT certificate and court-martial order.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 14 February 2001 for a period of 5 years, training as an infantryman and a $10,000 cash enlistment bonus.

2.  He completed his one-station unit training at Fort Benning, Georgia and was transferred to Baumholder, Germany for his first assignment.  He deployed to Iraq with his unit during that assignment.
3.  He completed his tour in Germany and was transferred to the 3rd Infantry Regiment at Fort Myer, Virginia on 10 February 2004.  He was promoted to the rank of sergeant on 1 September 2004 and was assigned the duties of a squad leader. 

4.  On 4 February 2005, the applicant was called into the first sergeant’s office to take a phone call from an individual who was attempting to repossess his automobile due to his failure to make scheduled payments.  The applicant was advised to take the car off post to a designated location and turn it over to the individual 30 minutes after the phone call.  The first sergeant gave the applicant permission to comply with the individual’s instructions and the applicant departed the company area and went absent without leave (AWOL).

5.  He remained absent in desertion until he was apprehended by civil authorities during a traffic stop in South Carolina on 31 March 2006 and was returned to military control at Fort Jackson, South Carolina and transported back to Fort Myer where charges were preferred against the applicant.

6.  On 21 July 2006, he was convicted by a special court-martial pursuant to his plea of being AWOL from 4 February 2005 to 31 March 2006.  He was sentenced to a reduction to the pay grade of E-1, confinement for 5 months and a BCD.  He was transferred to Fort Knox, Kentucky to serve his confinement.

7.  On 30 January 2007, the United States Army Court of Criminal Appeals affirmed the finding and sentence as approved by the convening authority.

8.  On 26 October 2007, he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  He completed 5 years, 1 month, and 27 days of total active service and had 560 days of lost time due to AWOL and confinement.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) is not available.

9.  A review of the record of trial indicates the applicant claimed that he had personal problems at home and he felt that he needed to be there to help his sister who was in an abusive relationship.  He admitted he knew that going AWOL was wrong, that he had leave accrued and did not request leave from his chain of command prior to going AWOL.

10.  He applied to the Army Discharge Review Board (ADRB) on 3 March 2008 and was granted a personal appearance before the ADRB in Washington, D.C. on 18 August 2008.  After hearing testimony and reviewing the facts and circumstances pertaining to his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request for an upgrade of his discharge on 26 August 2008.

11.  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.

12.  Army Regulation 635-200 (Enlisted Personnel Separations), 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.

13.  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 contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his absence, the fact that he was serving as a noncommissioned officer, and the fact that he was apprehended by civil authorities.   

2.  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 and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.

4.  The applicant violated the trust placed in him as a noncommissioned officer by knowingly and wrongfully going AWOL and he made no attempt to return on his own nor did he offer any reasonable excuse for his actions.  Accordingly, there does not appear to be any basis to upgrade his discharge or change the narrative reason for his separation.


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)                                         AR20140001756





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ABCMR Record of Proceedings (cont)                                         AR20140001756



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