BOARD DATE:	  30 October 2014

		DOCKET NUMBER:  AR20140004524 


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 his bad conduct discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states he left his unit without permission but he returned on his own.  It was stated during his court-martial that he was apprehended but this was wrong.  He reported to the New Orleans Military Entrance Processing Station (MEPS) and was transported back to Fort Polk.  His father accompanied him to the MEPS to help explain his circumstances; his father had been in the Army and was retired.  At the time, he had no infractions on his record and he believes other forms of punishment could have been imposed, given his situation.

3.  The applicant provides two letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a member of the Louisiana Army National Guard (LAARNG), in the rank/grade of private first class/E-3, when he was ordered to active duty as a member of his ARNG unit in support of Operation Desert Shield/Desert Storm.  He entered active on 30 November 1990.

2.  On 27 January 1991, he was reported as absent without leave (AWOL) from his assigned unit and was subsequently dropped from the rolls (DFR) as a deserter.  He returned to military control on or about 1 March 1991.

3.  On 30 April 1991, he was convicted by a special court-martial of being AWOL from 29 January until 28 February 1991.  He was sentenced to confinement for 4 months, forfeiture of $475 per month for 4 months, reduction to private/E-1, and a bad conduct discharge.

4.  He was subsequently incarcerated at Fort Polk, LA, and on 19 July 1991 he was placed on excess leave while awaiting the appellate review.

5.  Special Court-Martial Order Number 28, issued by the Headquarters, 5th Infantry Division and Fort Polk, Fort Polk, LA on 18 November 1992, shows his sentence was affirmed and having been complied with, the convening authority ordered his bad conduct discharge executed.  

6.  On 31 March 1993, he was released from active duty (REFRAD) to the control of the LAARNG.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was REFRAD under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, by reason of court-martial, with a bad conduct characterization of service.  He completed 2 years and 3 months of net active service with 622 days (1 year, 8 months, and 13 days) of excess leave and 110 days (3 months and 20 days) of lost time due to being AWOL or in confinement.

7.  On 31 July 1993, he was discharged from the ARNG.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows he received a dishonorable characterization of service.  He was subsequently issued a NGB Form 22A (Correction to NGB Form 22) wherein the characterization of his service was corrected to read bad conduct. 

8.  On 4 April 2005, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

9.  The applicant provides a letter to himself, dated 21 January 2014, from the Office of the Adjutant General, LAARNG, wherein it shows his request for an upgrade of his ARNG discharge was denied.

10.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  The version of the regulation in effect at the time, prescribed the policies and procedures for separating members with a bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed.
11.  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.

12.  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 Army Board for Correction of Military Records (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 evidence of record confirms the applicant's trial by a special court-martial was warranted by the gravity of the offense charged.  His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted.  

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  His contention that he voluntarily turned himself in is noted; however, it doesn't mitigate the fact that he deserted his unit during Operation Desert Shield/Desert Storm.  After a review of his record of service, it is clear his service did not meet the criteria for a general discharge or any other characterization of service then the one he received.  Therefore, 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)                                         AR20140004524





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ABCMR Record of Proceedings (cont)                                         AR20140004524



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