IN THE CASE OF:	

		BOARD DATE:	27 August 2009  

		DOCKET NUMBER:  AR20090004944 


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:

The applicant defers his request to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant’s bad conduct discharge to a general, under honorable conditions or an honorable discharge. 

2.  Counsel states that although the crimes committed by the applicant occurred in a combat zone, the mitigating circumstances, the applicant’s prior combat experience, and the fact that the applicant provided medical treatment to a wounded Iraqi individual, warrant an upgrade of the applicant’s discharge.  A general discharge would remove the stigma of a felony conviction and allow him to obtain treatment for Post Traumatic Stress Disorder (PTSD) and possible Traumatic Brain Injury (TBI). 

3.  Counsel submitted a lengthy brief in which he chronicles the applicant’s exposure to various combat situations and essentially argues that the Government and the military court failed to fully consider the applicant’s experience and mental health issues that were primarily caused by his extensive exposure to death, destruction, and stress, and that the awarding of a bad conduct discharge to a Soldier who took anti-anxiety medication to help with his PTSD and possible TBI is a disgrace.


4.  Counsel provides a copy of the Army Clemency and Parole Board’s Parole Review, dated 27 March 2008, and allied documents, including the applicant’s statements, character reference letters, sworn statements, charge sheet, and other documents, dated on various dates in 2007 and 2008, in support of the applicant’s request.  The applicant alleges that his full combat record was not addressed by the Clemency and Parole Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 30 October 2001.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Infantryman).  He also executed a 4-year reenlistment in the RA on 19 March 2004 and he was promoted through the ranks to sergeant (SGT)/E-5 on 1 July 2004. 

2.  The applicant's records further show he served in Korea and Iraq and that he was awarded the Army Achievement Medal, Good Conduct Medal, Global War on Terrorism Service Medal, Korea Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, and the Expert Infantryman Badge.  

3.  On 8 May 2007, the applicant pleaded guilty at a General Court-Martial to one specification of conspiring with another Soldier to break a pharmacy door in Iraq, go inside the pharmacy, take several boxes of drugs from the pharmacy, and later ingest the pills that were in the boxes, on divers occasions between on or about 20 August 2006 and 28 August 2006; one specification of wrongfully using diazepam (commonly known as valium) on divers occasions between on or about 20 August 2006 and 30 August 2006; one specification of wrongfully using codeine on divers occasions between on or about 20 August 2006 and 30 August 2006; one specification of wrongfully using diazepam while receiving special pay on or about 9 October 2006; one specification of leaving his post before he was regularly relieved and being found asleep on divers occasions between on or about 20 August 2006 and 28 August 2006; and one specification of unlawfully entering a pharmacy with intent to commit a criminal offense and committing larceny on or about 21 August 2006.  The Court sentenced the applicant to a reduction to private (PV1)/E-1, confinement for 32 months, and a bad conduct discharge.  The sentence was adjudged on 8 May 2007.

4.  On 22 January 2008, the convening authority approved a reduced sentence of reduction to PV1/E-1, confinement for 17 months, and a bad conduct discharge.  He further waived the automatic forfeiture of all pay and allowances required by Article 58b of the Uniform Code of Military Justice (UCMJ), effective 18 October 

2007 until 18 March 2008, with direction that the funds be paid to the applicant’s spouse; and except for that part of the sentence extending to a bad conduct discharge, he ordered the sentence executed. 

5.  On 30 April 2008, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  On 4 September 2008, the U.S. Court of Appeals for the Armed Forces denied the applicant’s petition for a grant of review of the decision of the U.S. Army Court of Criminal Appeals. 

7.  Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 220, dated 25 September 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

8.  The applicant was discharged from the Army on 20 March 2009.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Chapter 3, Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 6 years, 3 months, and 6 days of creditable military service with 412 days of lost time due to being in confinement.

9.  Counsel submitted copies of 15 character reference letters and/or letters of support, dated on various dates in 2007, from family members, relatives, friends, neighbors, and Soldiers that were previously submitted as part of his parole review.  The letters essentially describe the applicant as a good Soldier and husband who loved the Army and he had a promising career, but made a mistake that was caused by the stress of the combat environment and that would haunt him for life.  The authors further describe him as a mature, compassionate, friendly, and loving person, and that he and his spouse deserve a second chance in life.  

10.  Other than the applicant's assertions, there is no indication in the available records that the applicant was diagnosed with PTSD, TBI, or any other medical condition.

11.  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.

12.  Army Regulation 635-200, 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 (emphasis added), 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through counsel, contends that his discharge should be upgraded.

2.  The applicant’s combat service as well as his awards and decorations are noted; however, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence that the applicant was under any more stress than the thousands of other Soldiers who honorably served in Iraq or other combat zones under similar or even more stressful situations without resorting to larceny, conspiracy, or the use of unauthorized drugs.  

3.  Furthermore, there is inconclusive evidence in the available records and the applicant did not provide sufficient evidence that he suffered from any medical condition that caused him to commit the various offenses.  Even if he suffered from a medical condition, there were many other legitimate ways he could have used to address the situation had he chosen to use them. 

4.  The evidence of record shows that the applicant’s trial by General Court-Martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant 
was convicted.  His contentions relate to evidentiary matters which could have been raised and adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After a review of the applicant’s entire record of service, including his combat service, it is clear that his service did not meet the criteria for a general, under honorable conditions or an honorable discharge.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090004944



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ABCMR Record of Proceedings (cont)                                         AR20090004944



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