BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160001055 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 BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160001055 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. BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160001055 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 to general under honorable conditions. He also requests a personal appearance before the Board. 2. The applicant states his discharge is improper because his pre-service civilian convictions, which are properly listed on his enlistment document, were used during the (court-martial) proceedings leading to his discharge. 3. The applicant provides no additional documentation. CONSIDERATION OF EVIDENCE: 1. On 9 February 2004, the applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) for 8 years. On 22 July 2004, he enlisted in the Regular Army for 3 years and 25 weeks. 2. The applicant completed Standard Form 86 (Security Clearance Application) in conjunction with his enlistment in the Regular Army. Item 26 (Your Police Record – Other Offenses) he listed the following offenses: a. on 24 February 2004, theft (shoplifting) with 1 day in jail and fined $168.00; b. on 16 May 2004, criminal mischief then fined $207.00; and c. on 16 May 2004, reckless driving then fined $161.70. 3. DD Form 458 (Charge Sheet) dated 10 May 2005, shows the following charges: a. Charge I – violation of the Uniform Code of Military Justice (UCMJ), Article 85, in that the applicant did, on or about 9 April 2005, without authority and with intent to remain therefrom permanently, absent himself from his unit. b. Charge II – violation of UCMJ, Article 86, in that the applicant did, on or about 9 April 2005, without authority and with intent to remain therefrom permanently, absent himself from his unit. 4. DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 10 May 2005, reported the applicant's unauthorized absence as of 9 April 2005. 5. DD Form 616 (Report of Return of Absentee) dated 12 June 2005 shows the applicant was apprehended or surrendered to civil authorities and returned to military control on 11 June 2005. 6. DD Form 458 dated 14 June 2005 shows the applicant was charged with being absent without proper authorization effective 13 June 2005. 7. DD Form 2707 (Confinement Order) dated 11 July 2014 shows the applicant was found guilty during a general court-martial (GCM) of violating Article 86 of the UCMJ for being absent without authority, failing to go to his appointed place of duty, and breaking restriction. His sentence included reduction to private (pay grade E-1), forfeiture of all pay and allowances, confinement for 18 months, and a bad conduct discharge. 8. DA Form 4187 (Personnel Action) dated 23 October 2014 shows the applicant’s duty status changed from confinement to present for duty effective that same day. 9. GCM Order Number 262, U.S. Army Fires Center of Excellence and Fort Sill, Oklahoma, dated 3 September 2015, announced that in a GCM case pertaining to the applicant only so much of the sentence as provided for reduction to private, E-1, forfeiture of all pay and allowances, confinement for 8 months, and a bad conduct discharge, adjudged on 11 July 2014, as promulgated by GCM Order Number 2, Headquarters, Fort Carson, Colorado, dated 12February 2015, as corrected by the U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 9 April 2015, was finally affirmed. The applicant was credited with 98 days of confinement and that portion of the sentence extending to confinement was served. Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed. 10. Orders 280-1308, Fort Sill, Oklahoma, dated 7 October 2015, directed the applicant’s reassignment to the transition point for processing. His date of discharge is shown as 7 October 2015. 11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), shows he was discharged from the Regular Army on 7 October 2015 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, due to court-martial. He received a bad conduct characterization of service. He had over 9 years of lost time for the periods from 9 April to 10 June 2005, from 13 June 2005 to 28 December 2013, and from 4 April to 11 October 2014 due to unauthorized absence and confinement. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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. b. Paragraph 3-7b provides 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. c. Paragraph 3-11 provides a bad conduct discharge will be given to a Soldier pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence provided. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR. The Director or ABCMR may grant a formal hearing whenever justice requires it. 3. 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. DISCUSSION: 1. The applicant requested a personal appearance before the Board; however, there appears to be sufficient evidence to fully consider his application, thus a formal hearing is not warranted. 2. The applicant was convicted by a GCM for multiple periods of being absent without authority. His unauthorized absences totaled over 9 years. Trial by court-martial was warranted due to the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the offenses for which the applicant was convicted. 3. The applicant’s contention that his GCM was somehow unfair, because evidence in his military record showing his civilian convictions was used, appears to be without merit. He has not shown how the military court was prohibited from reviewing his entire military personnel file, to include the information he provided when enlisting. Furthermore, there is no evidence showing that such information resulted in a more severe sentence had it not been made available to the GCM authority. 4. The applicant has not provided evidence or a convincing argument showing he did not commit the offenses for which he was convicted. His contentions relate to evidentiary matters that are contained in his official military personnel file. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001055 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001055 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2