RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 20 October 2005
DOCKET NUMBER: AR20050001721
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun
Director
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. John Meixell
Chairperson
Mr. James Gunlicks
Member
Ms. Jeanette McCants
Member
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests reconsideration of an earlier request that clemency be granted in the form of a general discharge.
2. The applicant states he was severely injured while in the military when a machinegun fell on his head. He contends this injury caused a personality change which led him to make bad decisions.
3. The applicant provides a medical record, dated 21 April 2004; a DA Form 1059 (Service School Academic Evaluation Report), dated 2 April 1999; a Social Security Administration decision, dated 13 September 2004, with related documents; and progress notes, dated 21 April 2004.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003095771, on 29 June 2004.
2. The applicant provides progress notes, dated 21 April 2004, which state, in pertinent part, "When reviewed history there is a significant Head injury during the service and that the patient started to suffer personality and mood changes together with migraine headaches and memory impairment shortly thereafter." This medical record also shows that he was diagnosed with an anxiety disorder due to head injury and recurrent migraine headaches. He also provides medical records, dated 2004, which show he was treated for intractable headaches.
3. The applicant provides a DA Form 1059, dated 2 April 1999, which shows he was released from the basic noncommissioned officers course due to academic reasons.
4. The applicant provides a Social Security Administration decision, dated
13 September 2004, which shows disability was granted in his case.
5. The applicant's submissions are new evidence which will be considered by the Board.
6. The applicant enlisted on 6 November 1991 and remained on active duty through continuous reenlistments. He attained the rank of sergeant on 1 October 1994.
7. On 25 August 1999, in accordance with his pleas, the applicant was convicted by a special court-martial of using cocaine and stealing M21 simulators. He was sentenced to be reduced to E-1, to forfeit $600 for 6 months, to be confined for 4 months, and to be discharged from the Army with a bad conduct discharge. On 8 February 2000, the convening authority approved the sentence.
8. The decision by the U.S. Army Court of Military Review is not available. The bad conduct discharge was ordered to be executed on 7 June 2001.
9. Accordingly, the applicant was discharged on 11 July 2001 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He was issued a bad conduct discharge. He had served 9 years, 4 months and 27 days of total active service with 100 days of lost time due to confinement.
10. There are no service medical records available.
11. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge 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.
12. Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.
13. Army Regulation 635-200, paragraph 3-7, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions relate to evidentiary and procedural matters that should have been adjudicated in the court-martial appellate process and furnish no basis for recharacterization of the discharge.
2. Evidence of record shows the applicant, a sergeant, was discharged with a bad conduct discharge for larceny and for using cocaine. As a result, his record was not satisfactory. Therefore, clemency in the form of a general discharge is not warranted in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
JM_____ JG______ JM______ 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 to amend the decision of the ABCMR set forth in Docket Number AR2003095771, dated 29 June 2004.
__John Meixell_______
CHAIRPERSON
INDEX
CASE ID
AR20050001721
SUFFIX
RECON
20040629
DATE BOARDED
20051020
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
20010711
DISCHARGE AUTHORITY
AR 635-200 Chapter 3
DISCHARGE REASON
As a result of court-martial
BOARD DECISION
NC
REVIEW AUTHORITY
ISSUES 1.
144.0000
2.
3.
4.
5.
6.
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