IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090006595 


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

2.  The applicant essentially states that he was suffering from schizophrenia before the incident occurred that led to his court-martial.  He also contends that he received a bad conduct discharge as a result of a general court-martial, but a bad conduct discharge can only be authorized by a special court-martial.  He further claims that he has been diagnosed with schizophrenia, hypertension, depression, anxiety, and eczema and that they were all incurred while he was on active duty.  Additionally, he contends that the Department of Veterans Affairs (VA) made their decisions based upon false information.  The VA alleged he did not get help for his alcohol abuse, which in fact he was getting into at the time of his court-martial.  But his unit would not allow him to go to outpatient treatment to receive further help.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Regular Army on 17 January 2002.  He completed initial entry training and was awarded military occupational specialty 77F (Petroleum Supply Specialist).  He then departed for a tour in Germany and was ultimately assigned to Headquarters and Headquarters Company, 2nd Battalion, 1st Aviation Regiment.

2.  On 10 June 2003, the applicant was convicted by a general court-martial for:

   a.  assault with a dangerous weapon on or about 27 September 2002;
   
   b.  being disrespectful in deportment towards his superior noncommissioned officer on or about 27 September 2002;
   
   c.  committing an assault upon a private/E-2 and an E-5 on or about 
27 September 2002 by pointing and waiving a knife at them;
   
   d.  breaking restriction on or about 16 November 2002;
   
   e.  failing to obey a lawful order from a military police officer by failing to return a car;
   
   f.  willfully damaging the hinge of the front door of government quarters and ripping out a wall mount for the cable cord in government quarters which was the property of the United States Government on or about 19 January 2003;
   
   g.  being drunk and disorderly on or about 26 December 2002 and 
19 January 2003, which was conduct of a nature to bring discredit upon the Armed Forces.
   
3.  The applicant was sentenced to a reduction in rank from private first class/E-3 to private/E-1, confinement for 42 months, and a bad conduct discharge.  He was placed in confinement on 10 June 2003.  

4.  On or about 1 December 2006, the applicant was released from confinement, and he was placed on excess leave pending appellate review of his case.

5.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma General Court-Martial Order Number 274, dated 27 September 2007, shows the applicant’s sentence to reduction to the rank of private/E-1, confinement for 42 months, and a bad conduct discharge was finally affirmed, and with Article 71(c) having been complied with, the applicant’s bad conduct discharge was to be executed.  This order shows that all required appellate reviews were completed.


6.  On 21 April 2008, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he received a bad conduct discharge.  Item 28 (Narrative Reason for Separation) of this same document has an entry "Court-Martial, Other."

7.  Title 10, U.S. Code, section 1552, as amended does not permit any redress by this Board that would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to an honorable or general discharge. 


2.  The applicant's contention that he suffered from schizophrenia prior to the incident that occurred which led to his court-martial conviction was considered, as were all of his other medical-related claims.  However, there is no evidence in the available records, and the applicant failed to provide any evidence to show that he was suffering from schizophrenia at the time of his offenses that led to his court-martial conviction.

3.  The applicant's contention that a bad conduct discharge can only be authorized as a result of a special court-martial was also considered, but found to lack merit.  A general court-martial most certainly can impose a bad conduct discharge.  

4.  Additionally, the applicant's claim that his unit would not allow him to seek outpatient treatment for alcohol abuse was considered.  However, the applicant did not provide any evidence to corroborate this claim.

5.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a general court-martial for multiple offenses under the provisions of the Uniform Code of Military Justice shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows the applicant was discharged pursuant to a duly reviewed and affirmed general court-martial order, and there is no record or documentary evidence of acts of valor or service that would warrant special recognition.  

6.  After a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for granting relief to the applicant.

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)                                         AR20090006595



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006595



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1