RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 JUNE 2008
	DOCKET NUMBER:  AR20080002013 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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, in effect, that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that before he was discharged on 12 October 2007, he served his country honorably from 1 February 2001 to 31 August 2005. He states he had three different deployments to Kosovo, Kuwait, and to Iraq where he performed his duty honorably as a team leader in the rank as a corporal and sergeant.  He had no serious problems during these deployments.  He was placed on stop-loss and he deployed with his unit without any hesitation. He was a combat Soldier and knew his duties.

3.  He continues that after the deployments he began to have many problems he was unable to identify.  He was exposed to Rocket Propelled Grenade rounds, Improvised Explosive Devices, and the stressors of close combat.  He was not diagnosed with Post-Traumatic Stress Disorder and he never sought treatment for his problems because it wasn't what an Infantry Soldier did in his unit.  His command knew he was having problems and they never assisted him through proper counseling and therapy.  He turned to substance abuse to handle his problems and he received a bad conduct discharge.  He received counseling after he was discharged and he has not had any problems with substance abuse since then.

4.  The applicant provides a copy of his separation document (DD Form 214) and a personal statement dated 9 January 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he enlisted in the Regular Army on 1 February 2001.  He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Infantryman).

2.  The applicant's personnel record shows he served honorably until he reenlisted on 1 September 2005 for 4 years.  His highest grade held on active duty was E-5.

3.  On 25 August 2006, the applicant was tried by a general court-martial for wrongful use of: cocaine; 3, 4, methylenedioxy-methamphetamine; D-methamphetamine; cocaine; and marijuana.  The applicant pleaded guilty to all charges and specifications.

4.  The general court-martial found the applicant guilty on all charges and specifications.  His sentence consisted of reduction to private/pay grade E-1, confinement for eight months, and a bad conduct discharge.  

5.  On 26 August 2006, the convening authority approved only so much of the sentence as provided for a reduction to the grade of private E-1, confinement for five months and a bad conduct discharge was approved.  Except for that part of the sentence extending to a bad conduct discharge, the sentenced was ordered to be executed.

6.  On 13 March 2007, the Army Court of Criminal Appeals (ACCA) affirmed the findings and sentence in the applicant's case.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, General Court-Martial Order Number 150, dated 19 July 2007 shows that the applicant's sentence, as promulgated on 17 November 2006, was affirmed.  Also, the applicant's bad conduct discharge was ordered to be executed.  The part of the applicant's sentence extending to confinement had already been served.

8.  On 12 October 2007, the applicant was discharged as a result of a court-martial.  He had completed 6 years, 4 months, and 13 days of Net Active Service This Period.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.

10.  Court-martial convictions stand as adjudged or as modified by appeal through the judicial process.  In accordance with Title 10, United States 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 applicant requests that his bad conduct discharge be upgraded to an honorable discharge.

2.  The applicant states that he served his country honorably, he had three deployments, he had no serious problems during the deployments, he was exposed to Rocket Propelled Grenade rounds, Improvised Explosive Devices, and the stressors of close combat.  He was not diagnosed with Post-Traumatic Stress Disorder and he never sought out treatment because it wasn't what an Infantry Soldier did in his unit.  He then turned to substance abuse to handle his problems and while his command knew about his problems, they did not provide him any assistance.  These statements are noted; however, the statements are not sufficient to warrant clemency in view of the seriousness of his misconduct while on active duty.

3.  The applicant has not submitted any evidence to show that his command knew about his problems.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.

5.  Any relief by ABCMR regarding 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.

6.  The applicant's entire record of service was carefully considered.  However, given the seriousness of the offenses for which he was convicted, it was not considered to be sufficient to warrant clemency in this case.  As such, there is no basis upon which to support the applicant's request to upgrade his bad conduct discharge.

7.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement or to show clemency is warranted.

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


ABCMR Record of Proceedings (cont)                                         AR20080002013



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
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