IN THE CASE OF:	  

		BOARD DATE:	  15 October 2015

		DOCKET NUMBER:  AR20150003754 


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 honorable.

2.  The applicant states he paid the price for the wrong he did and he is attempting to better his life and put the past behind him.  He completed a full term of honorable service and reenlisted while on active duty in Iraq to continue serving his country.  He wishes to pursue a career in substance abuse rehabilitation counseling pending a decision to upgrade of his discharge.

3.  The applicant provides his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 24 August 2007 and he held military occupational specialty 92Y (Unit Supply Specialist).  On 29 November 2007, he was assigned to the 1st Battalion, 27th Infantry Regiment, Schofield Barracks, HI.  

2.  He served in Iraq with his assigned unit from 8 March 2008 to 26 January 2009 and from 2 July 2010 to 18 June 2011.  He reenlisted on 6 September 2008, while in Iraq, and he was promoted to sergeant (SGT)/E-5 on 1 June 2012.

3.  On 2 October 2012, he was assigned to the 1st Battalion, 48th Infantry Regiment, Fort Leonard Wood, MO.  His record contains a memorandum, dated 9 April 2013, subject: Disqualification of the Army Good Conduct Medal, from his immediate commander, wherein it stated he was disapproved for award of the Army Good Conduct Medal for the period 6 January 2010 to 5 January 2013 due to pleading no contest to harassment in civil court in February 2010.

4.  He was reported as absent without leave (AWOL) from his assigned unit from 7 to 18 September 2013 and from 6 to 8 November 2013.  He was reported as confined by civil authorities from 8 to 12 November 2013.

5.  On 12 November 2013, he pled guilty to and was convicted by a general court-marital to one specification each of:

* being AWOL from on or about 7 to 18 September 2013
* wrongfully using methamphetamine on or about 2 and 6 September 2013
* stealing a poncho liner, sleeping bag, and a "bivy" cover, the military property of another Soldier, on or about 3 October 2013
* wrongfully using methamphetamine on or about 14 and 18September 2013
* being AWOL from on or about 6 to 8 November 2013

6.  He was sentenced to reduction to private (PVT)/E-1, confinement for 8 months, and a bad conduct discharge.  The general court-martial convening authority subsequently approved only so much of his sentence that provided reduction to PVT, confinement for 5 months, and the bad conduct discharge.

7.  He was assigned to the Personnel Control Facility, Fort Sill, OK, and confined at the Midwest Joint Regional Correctional Facility, Fort Leavenworth, KS.  He was placed on excess leave on 26 March 2014 while awaiting appellate review.

8.  On 8 January 2015, the sentence having been affirmed and complied with, the approving authority ordered the bad conduct discharge executed.  

9.  On 11 February 2015, he was discharged from the Army.  The DD Form 214 he was issued shows he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, with a bad conduct characterization of service.  He completed 7 years, 3 months, and 17 days of active service of which 323 days (10 months and 23 days) was excess leave and he had 66 days of lost time lost due to being AWOL or in confinement.  Item 18 (Remarks) of his DD Form 214 contains the entry "Continuous Honorable Active Service 20070824 - 20080905."

10.  Army Regulation 635-8 (Separation Processing and Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  For Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "Continuous Honorable Active Service From (first day of service which DD Form 214 was not issued) Until (date before commencement of current enlistment)."

11.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.

14.  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 shows the applicant, a SGT at the time, pled guilty to and was convicted by a general court-martial of being AWOL on two separate occasions, using methamphetamine on several occasions, and the stealing military property of another Soldier.  His trial by a general court-martial was warranted by the gravity of the offenses 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 ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  After a review of his record of service, it is clear that his service did not meet the criteria for an honorable or a general discharge or any characterization of service other than the one he received.  

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)                                         AR20150003754





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150003754



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1