IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090007514 


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 that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states that this was his first disciplinary action in his military history.  He states he needs his discharge upgraded so that he can apply for government jobs.  He is unable to reenlist due to his discharge characterization and enlistment code.  The applicant states that he has been suffering since the court-martial.  He would like a new start on life and the opportunity to be able to contribute to society and his family.  The applicant contends that he was under a lot of marital and physical stress at that time.  He attended psychological and physical therapy at Evans Army Hospital, Fort Carson, CO, prior to his court-martial.  During his trial, he expressed that he did not want to leave the military.  Although he has tried to reenlist numerous times with different branches of the military, he could not due to his BCD.  The applicant alleges that his court-martial was used as an example to other Soldiers.

3.  The applicant provides copies of the following documents in support of his application:  two DD Forms 214 (Certificate of Release or Discharge from Active Duty), his general court-martial proceedings, a Predeployment Behavioral Health Screening, a Standard Form 600 (Chronological Record of Medical Care), a Standard Form 513 (Consultation Sheet), four DA Forms 3349 (Physical Profile), a personal statement, six letters of support, and two stipulations of expected testimony from his mother and wife.



CONSIDERATION OF EVIDENCE:

1.  After having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 24 June 2005.  

2.  Between March 2006 and May 2006, the applicant was placed on three temporary physical profiles for right knee surgery (113111), right knee pain (112111), and knee pain from inflammation after surgery (113111); and one permanent profile for anterior knee pain (112111).

3.  The applicant's Standard Form 600 shows he was evaluated at a medical facility in May 2006 regarding stress over medical concerns.

4.  On 17 May 2006, the applicant completed a Predeployment Behavioral Health Screening.  He marked the entry "Yes" for the questions regarding if he felt down, depressed, or hopeless; felt disconnected or had little interest or pleasure in doing things; had difficulty falling or staying asleep; or had nightmares or bad dreams in the past month.  The applicant indicated he had prior treatment or contact with Army Community Services, marriage/family counseling, and a chaplain in the past 3 years.

5.  On 16 October 2006, the applicant submitted a personal statement in support of his request for discharge in lieu of court-martial under the provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  He explained the events which led to his absence without leave (AWOL) from Fort Carson, CO.  This request was apparently disapproved.

6.  On 13 December 2006, the applicant was found guilty pursuant to his plea by a general court-martial of quitting his place of duty at Fort Carson, CO, on 22 May 2006 with intent to avoid hazardous duty and remaining so absent in desertion until 8 September 2006.  He was sentenced to a reduction to E-1, confinement for 6 months, and a BCD.  On an unknown date, the sentence was approved.

7.  On an unknown date, the applicant submitted a request for clemency addressed to the court.  In his statement, he admitted that his actions on 22 May 2006 were wrong and he listed the reasons for his actions.  He explained that he was under tremendous stress due to the loss of his child, his wife's medical condition, and dealing with the pain in his knee.

8.  On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The BCD was ordered to be executed.
9.  On 19 February 2007, the applicant's defense counsel submitted a request that the applicant be granted clemency by disapproving any sentence in excess of 3 months of confinement and a waiver of automatic forfeitures.

10.  On 14 November 2008, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial.  He completed 2 years, 8 months, and 2 days of creditable active service with 261 days of lost time.

11.  The applicant provided six character references in support of his claim.  The individuals described the applicant's commitment to his career and family and his moral character.

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD 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.

13.  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.

14.  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.

15.  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 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 contends that he was under a lot of marital and physical stress during the time in question is noted.  However, there is insufficient evidence which indicates the actions taken in this case were in error or unjust or that the stress he was under was the basis for his absence to avoid hazardous duty.

2.  Although the applicant provided statements, physical profiles, medical documents, and character references in support of his claim, these factors are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  It is noted that the trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant’s record of service shows he was convicted by a general court-martial of quitting his place of duty at Fort Carson, CO, from 22 May 2006 to 8 September 2006 (109 days).  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also render his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20090007514



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ABCMR Record of Proceedings (cont)                                         AR20090007514



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