IN THE CASE OF:	  

		BOARD DATE:	  14 November 2014

		DOCKET NUMBER:  AR20140004241 


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 he would like to become eligible for health benefits for himself and his family.  He turned himself in and he was allowed to come and go freely until trial without any incidents.  This was his only incident.  He was young and afraid to return to duty.  He willingly admitted his fault, accepted the punishment, and served his time. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 was born in May 1986 and enlisted in the Regular Army at 20 years of age on 15 June 2006.  He was trained in and held military occupational specialty 11C (Indirect Fire Infantryman). 

3.  He was awarded or authorized the National Defense Service Medal and Army Service Ribbon.  He was assigned to 3rd Battalion, 7th Infantry, 3rd Infantry Division, Fort Stewart, GA. 

4.  On 11 September 2007, he departed his unit in an absent without leave (AWOL) status and on 12 October 2007, he was dropped from the Army rolls as a deserter.  He surrendered to military authorities on 20 October 2008.  

5.  On 13 January 2009, consistent with his pleas, he was convicted by a general court-martial of one specification of - with intent to avoid hazardous duty and to shirk important service, namely Operation Iraqi Freedom V, quitting his unit and being AWOL from on or about 11 September 2007 to on or about 20 October 2008.  The court sentenced him to a bad conduct discharge, confinement for 9 months, and a reduction to the lowest enlisted grade. 

6.  On 23 July 2009, the convening authority approved a lesser sentence of reduction to E-1, confinement for 8 months, and a bad conduct discharge, 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 17 February 2010, the U.S. Army Court of Criminal Appeals deleted the wording "and to shirk important service" from the specification and affirmed the approved findings of guilty and the sentence.  

8.  On 25 May 2010, the U.S. Court of Appeals of the Armed Forces denied his petition for a grant of review of his case. 

9.  Headquarters, U.S. Army Armor Accessions Command, Fort Knox, KY, General Court-Martial Order Number 4, dated 14 June 2010, shows the convening authority ordered the applicant's bad conduct discharge duly executed after completion of all required post-trial and appellate reviews.

10.  He was discharged on 6 September 2010.  His DD Form 214 shows he was discharged as a result of a court-martial in accordance with Army Regulation 635-200(Active Duty Enlisted Administrative Separations) with a bad conduct discharge.  His DD Form 214 shows he completed 3 years, 7 months, and 3 days of active service and he also had lost time from 11 September 2008 (i.e., 2007) to 20 October 2008 and 13 January 2009 to 21 July 2009. 
11.  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.

12.  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.

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 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.  The applicant was 20 years of age at the time of his enlistment and nearly 22 years of age at the time of his offense.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

5.  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)                                         AR20140004241





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140004241



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1