IN THE CASE OF:	

		BOARD DATE:	10 September 2009  

		DOCKET NUMBER:  AR20090005864 


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 a review of the general court-martial conviction and sentencing.

2.  The applicant states that since his release from active duty (REFRAD) he has been determined to be 100 percent disabled by the Department of Veterans Affairs (VA) and the Department of Social Security.  He states it has been determined that his condition (severe Post Traumatic Stress Disorder (PTSD)) existed during his period of enlistment.  He states that he explained during his court-martial that he was experiencing serious mental trauma, as well as physically incapacitating issues.  He states that during the time of his offenses, he lost a baby who was 8 months old and he was also mourning other losses that he was experiencing during that period.  He states that when he was reported as absent without leave (AWOL), he was experiencing a severe emotional and physical breakdown; he was unable to sleep for days at times; he found himself exhausted and unable to perform his duties with the strictest attention; and he was abusing alcohol to help him to sleep and for pain relief.  He states that he was approached by a friend who was concerned about his alcohol consumption and his friend suggested that he take a hit from a joint, which he did.  He states he had forgotten about his actual use of marijuana, but he was reminded by his friend of its use.

3.  The applicant provides a letter from the VA dated 22 April 2008 and a letter from the Social Security Administration dated 25 April 2008.


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.  After completing 5 years, 3 months, and 22 days of prior active service in the Regular Army (RA) with a break in service, the applicant enlisted in the RA in Spokane, Washington, for 3 years, in the pay grade of E-5, on 12 November 1991.  He remained on active duty through a series of enlistments and extensions.

3.  A Positive Drug Report dated 29 April 2002 shows that during a random inspection urinalysis the applicant submitted a urine specimen that tested positive for marijuana on 22 October 2001.

4.  On 26 August 2002, the applicant was convicted, pursuant to his pleas, by a general court-martial of being AWOL from 23 January 2002 until 14 February 2002; for being AWOL from 20 February 2002 until 22 March 2002; and for wrongfully using marijuana between on or about 16 September 2001 and 16 October 2001.  He was sentenced to be reduced to the pay grade of E-1 and to be confined for 120 days.

5.  On 29 August 2002, a physical examination found no significant health issues.

6.  On 3 September 2002, at the request of his commander, the applicant underwent a mental status evaluation and the clinical psychologist determined that his behavior was normal; he was fully alert; he was fully oriented; his mood or affect was unremarkable; his thinking process was clear; his thought content was normal; and his memory was good.  The clinical psychologist further determined that the applicant had the mental capacity to understand and to participate in board proceedings; that he was mentally responsible for his behavior; and that he could distinguish right from wrong.  The applicant was cleared for any administrative actions deemed appropriate by his command.

7.  On 13 September 2002, the applicant was notified that action to separate him from the Army under the provisions of Army Regulation 635-200, chapter 14, due to misconduct – commission of a serious offense, had been initiated.  He acknowledged receipt of the notification and initialed that he wished to waive his right to consult with counsel, to have his case considered by an administrative separation board, and to submit a statement in his own behalf.

8.  The appropriate authority approved the applicant’s discharge on 13 September 2002 and he directed the issuance of a General Discharge Certificate.

9.  Accordingly, on 18 September 2002, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14-12c, for misconduct – commission of a serious offense.  He had completed 15 years, 11 months, and 28 days of total active service and he was furnished a General Discharge Certificate.

10.  The letter that the applicant has submitted from the VA in support of his appeal is dated 22 April 2008 and states that he is receiving monthly compensation payments for a service-connected disability rated at 70 percent and that he is received monthly compensation payment at 100 percent due to individual unemployability linked to service-connected disabilities. 

11.  The letter from the Social Security Administration is dated 25 April 2008 and shows that he is receive monthly benefits in the amount of $1,219.00, before deductions.

12.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

13.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a court-martial 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 contends that his general court-martial conviction and sentence should be reviewed.

2.  However, as previously stated, the authority under which this Board acts provides, in pertinent part, that the Board is not empowered to set aside a 
court-martial 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.

3.  The applicant’s general court-martial sentence did not include discharge from the Army.  His sentence included a reduction to the pay grade of E-1 and confinement for 120 days.  Considering the nature of the applicant’s offenses of using marijuana and being AWOL on two separate occasions, the sentence that was imposed against him was not inappropriate and there appears to be no basis for clemency in the applicant’s case. 

4.  The applicant’s contentions in regard to the service-connected disability rating awarded to him by the VA and the benefits that he is currently receiving from the Social Security Administration have been noted.  However, the applicant underwent a mental status evaluation while he was in the Army which cleared him for any administrative actions deemed appropriate by his command. 

5.  There is no evidence in the available record, nor has the applicant submitted any evidence, that shows he was suffering from PTSD while he was in the Army.  Both of the letters that he has submitted in support of his appeal are dated in the year 2008 and he was discharged in 2002.

6.  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. 

7.  In view of the foregoing, there is no basis for granting the applicant’s request.





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)                                         AR20090005864





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ABCMR Record of Proceedings (cont)                                         AR20090005864



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