IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010845 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010845 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 2 June 2016 DOCKET NUMBER: AR20150010845 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 (BCD) to a general, under honorable conditions discharge. 2. The applicant states he received the discharge for being absent without leave (AWOL) on four occasions and that alcohol abuse was a significant factor in each incident of AWOL. He states the incidents of AWOL were the result of death threats from noncommissioned officers (NCOs) during training for deployment to Iraq. He was told that "Friendly Fire" happens and he feared for his life. Since his discharge, he has been rehabilitated and he would like to have the blemish of the BCD removed from his military records. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and 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 enlisted in the Regular Army on 6 February 2006 for a period of 3 years and 16 weeks. Upon completion of training he was awarded military occupational specialty 11C (Indirect Fire Infantryman). 3. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for: * failing to go at the time prescribed to his appointed place of duty (three specifications; 23 August, 30 August, and 24 September 2006) * being AWOL (two specifications; 10 October 2006 to 25 October 2006 and 2 December 2006 to 18 December 2006) 4. A "Corrected Copy" of Headquarters, Fort Stewart, GA, General Court-Martial Order Number 35, dated 4 September 2008, shows, on 8 April 2008, the applicant pled guilty to and was convicted of violation of the UCMJ: * Charge 1 – * Article 85, for, on 16 March 2007, with intent to avoid hazardous duty; namely, Operation Iraqi Freedom V, quit his unit and remained absent in desertion until on or about 14 November 2007 * Article 86, for being AWOL from 14 December 2007 to 17 December 2007 * Charge II – Article 91, for, on 14 December 2007, willfully disobeying a lawful order from a senior NCO to "get on the next greyhound bus and return to the unit" * Charge III (redesignated Charge II) – * Article 87, for, on 12 April 2007, through design, did miss the movement of his unit, with which he was required in the course of his duty to move * Article 90, for, on 14 December 2007, willfully disobeying a lawful command from his superior commissioned officer to stay in his barracks room and rest from his surgery a. The applicant was sentenced to reduction to the grade of E-1, confinement for 18 months, forfeiture of all pay and allowances, and a BCD. b. On 4 September 2008, the general court-martial convening authority approved the sentence, except for that part of the sentence extending to a BCD, and ordered it executed. The applicant was credited with 118 days of confinement against the sentence to confinement. 5. On 14 November 2008, the United States Army Court of Criminal Appeals, on consideration of the entire record, including consideration of the issues personally specified by the applicant, approved and affirmed the findings of guilty and the sentence. 6. On 21 May 2009, the United States Court of Appeals for the Armed Forces denied the applicant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals. 7. Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 99, dated 23 June 2009, confirmed that the applicant's court-martial sentence was affirmed. The sentence to confinement having been served and the provisions of Article 71(c) having been complied with, the sentence was ordered duly executed. 8. The applicant's DD Form 214 shows he was separated on 28 August 2009 with a BCD. He was credited with 1 year, 7 months, and 26 days of net active service this period. He had a total of 700 days of time lost due to AWOL and confinement. It also shows in – * item 25 (Separation Authority): Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations ) Chapter 3 * item 26 (Separation Code): "JJD" (As a Result of Court Marital, Other) * item 28 (Narrative Reason for Separation): "Court Martial, Other" REFERENCES: 1. Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 provides that a member will be given a dishonorable or 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 is ordered executed. b. Chapter 3, 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. 2. 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. DISCUSSION: 1. The applicant contends that his discharge should be upgraded because he was discharged for being AWOL (on four occasions), alcohol abuse was a factor in each incident of AWOL, and he received death threats from NCOs during the overseas deployment process. 2. There is no evidence of record and the applicant provides insufficient evidence to show his periods of AWOL were due to alcohol abuse. 3. The contention the applicant puts forward in his application to this Board (i.e., of death threats by Army NCOs) is argument he could have presented during his court-martial and appeal. However, apparently he did not because records show he pled guilty to and was found guilty of the charge and specification of willfully disobeying a lawful order of a senior NCO. 4. The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal. 5. Records show the applicant received NJP for three specifications of failing to report at the time prescribed to his appointed place of duty and two specifications of AWOL. Records also show he was tried and convicted at a general court-martial, and found guilty of one specification of AWOL, willfully disobeying a lawful order, willfully disobeying a lawful command, desertion, and missing movement to deploy to Iraq, which offers important, additional information concerning his contention. The period of military service, during which the applicant committed and was convicted of serious offenses, does not demonstrate and cannot be categorized as under honorable conditions. 6. The applicant's contention concerning his post-service rehabilitation was considered. However, it is insufficient as a basis for upgrading his discharge. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010845 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010845 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2