IN THE CASE OF:	

		BOARD DATE:	15 September 2009    

		DOCKET NUMBER:  AR20090009154 


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 be upgraded to a general discharge.  He also requests, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show the Airborne Certificate Badge [Parachutist Badge], two awards of the Army Achievement Medal, the Iraq Campaign Medal, and the Air Assault Badge.  He further requests that his DD Form 214 be corrected to show that he completed the Combat Lifesaver Course; the Radioactive Materials Handling Safety Course; the Chemical Operations Specialist Class; the Italian Headstart Course; the Operation and Safety Procedures for Chemical Agents Course; the Noncommissioned Officer Nuclear, Biological, and Chemical (NBC) Defense Course; and toxic agent training.

2.  The applicant states, in effect, that his bad conduct discharge was an error or injustice because the injuries he received in the service caused or contributed to his disciplinary problems.  He contends that during his first period of service he received several injuries to include traumatic brain injuries and possible post-traumatic stress disorder (PTSD) from his service in Kosovo.  He indicates that he was exposed to NBC agents while protected followed by decontamination; that while in the Ranger Indoctrination Program he received a possible concussion while fast roping; and that while on a parachute jump he was involved in a towed-jumper accident wherein he received a concussion, neck injury, and other injuries.  He goes on to state that he has been diagnosed by the Department of Veterans Affairs (DVA) with PTSD, a traumatic brain injury, a herniated cervical disk, a history of an eye injury, and possible chemical injuries.  He further states that during his disciplinary proceedings he was diagnosed with schizophrenia, a personality disorder, and hypersensitive mania and that an Army psychiatrist recommended that he be discharged for medical conditions.

3.  The applicant provides numerous certificates of training; orders for two awards of the Army Achievement Medal; memoranda, dated 3 October 2003 and 21 January 2005; a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); a medical record, dated 11 February 2009; a copy of his DD Form 214; a general court-martial order; a Notice of Court-Martial Order Correction; and a letter, dated 18 March 2009, from a Member of Congress in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's enlistment contract shows he enlisted in the Regular Army on 4 February 1999 for a period of 3 years for military occupational specialty 54B (chemical operations specialist).

2.  The applicant provided a diploma which shows he completed the Chemical Operations Specialist Class during the period 12 February 1999 to 18 June 1999 (17 weeks).

3.  The applicant provided a certificate which shows he completed toxic agent training on 18 June 1999.

4.  The applicant provided a certificate of training which shows he completed the 40-hour Combat Lifesaver Course in August 1999.

5.  Orders, dated 7 July 2000, show the applicant received the Army Achievement Medal for meritorious service for the period 26 June 2000 to 30 June 2000.

6.  The applicant reenlisted on 20 July 2001 for a period of 4 years.

7.  Orders, dated 7 February 2002, show the applicant received the Army Achievement Medal for meritorious service for the period 8 September 1999 to 14 January 2002.

8.  The applicant provided a certificate of training which shows he completed the 40-hour Italian Headstart Course in March 2002.

9.  The applicant provided a certificate which shows he completed the 24-hour Radioactive Materials Handling Safety Course in May 2002.

10.  The applicant provided a certificate of training which shows he completed 8 hours of instruction on the Operation and Safety Procedures of the Chemical Agent Alarm on 9 August 2002.

11.  The applicant provided a certificate of training which shows he completed the 80-hour V Corps Officer/Noncommissioned Officer NBC Defense Course in August 2002.

12.  The applicant served in Iraq from 27 July 2003 to 27 September 2003.

13.  The applicant provided a memorandum, dated 21 January 2005, from the Chief, Behavioral Health, U.S. Army Health Clinic, in Vicenza, Italy.  The psychiatrist states, in pertinent part, that she has been treating the applicant since August 2004 and that she diagnosed the applicant with antisocial personality disorder, alcohol addiction, and possible schizotypal personality disorder.  She attests that the applicant does not have a tendency to be psychotic, but he has periodic illusions in the form of religious "shadows" who are a part of his personal religion, and that the applicant understands the difference between right and wrong and is competent to stand trial and assist in his defense.  She states that although patients with schizoptypal personality disorder can develop schizophrenia disorders, she has not seen this tendency in the applicant.  She also states that with his diagnoses, it would have been her recommendation to the applicant's commander to separate him administratively before any of the misconduct occurred.

14.  On 27 January 2005, the applicant was convicted by a general court-martial of larceny, violating two lawful regulations, assault, endeavoring to impede an investigation, and making a false official statement.  He was sentenced to forfeit all pay and allowances, to be reduced to E-1, to be confined for 3 years, and to be discharged with a bad conduct discharge.  On 16 June 2005, the convening authority approved only so much of the sentence as provided for forfeiture of all pay and allowances, a reduction to E-1, confinement for 15 months, and a bad conduct discharge.

15.  On 4 April 2006, the applicant was convicted by a special court-martial of assault.  He was sentenced to be confined for 6 months.  On 4 January 2007, the convening authority approved the sentence.

16.  On 4 January 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

17.  On 7 June 2007, the convening authority ordered the bad conduct discharge to be executed.
18.  The applicant was discharged with a bad conduct discharge on 12 October 2007 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  He had served a total of 7 years, 2 months, and 27 days of total active service with 525 days of lost time due to confinement.

19.  The applicant's DD Form 214 shows the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Overseas Service Ribbon, and the Parachutist Badge as authorized awards.  His DD Form 214 shows he was separated from the service on incomplete records.  Since the applicant's DD Form 214 shows the Parachutist Badge, this portion of his request will not be discussed further in these proceedings.

20.  There are no orders for the Air Assault Badge in the applicant's service personnel records.  There is also no evidence in his records which shows that he completed an Air Assault course.

21.  There are no service medical records available.

22.  The applicant provided a DVA medical record, dated 11 February 2009, which shows his assessment was traumatic brain injury, degenerative disk disease, cervical spine and herniation, chronic headaches, PTSD, chronic mild allergic conjunctivitis, and a ganglia cyst on his wrist.

23.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a bad conduct discharge 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.

24.  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.  

25.  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.
26.  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.

27.  Army Regulation 600-8-22 states that individuals authorized the Iraq Campaign Medal must have served in direct support of Operation Iraqi Freedom (OIF).  The area of eligibility encompasses all land area of the country of Iraq and the contiguous water area out to 12 nautical miles and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles.  The Iraq Campaign Medal period of eligibility is on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of OIF.  A bronze service star is authorized for wear on the Iraq Campaign Medal for the following campaigns:  Liberation of Iraq (19 March 2003-1 May 2003), Transition of Iraq (2 May 2003-28 June 2004), Iraqi Governance (29 June 2004-15 December 2005); and National Resolution (16 December 2005-to a date to be determined).

28.  Army Regulation 600-8-22, in pertinent part, sets forth requirements for award of the Air Assault Badge.  Award of the Air Assault Badge requires that an individual must have satisfactorily completed an Air Assault training course according to the U.S. Army Training and Doctrine Command standardized Air Assault Core Program of Instruction or completed the standard Air Assault Course while assigned or attached to the 101st Airborne Division (Air Assault) after 1 April 1974.  

29.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation states, in pertinent part, that item 14 will list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214.  Include title, length in weeks, and year completed.  This information is to assist the Soldier in job placement and counseling; therefore, do not list training courses for combat skills.

30.  Table 5-2 (Instructions for Recording Entries on DA Form 2-1 (Personnel Qualification Record)) of Army Regulation 600-8-104 (Military Personnel Information Management/Records) states, in pertinent part, that for military schools and courses not otherwise provided for in this regulation, an entry will be made for successful completion of any course of instruction conducted under military sponsorship or direction if attendance equals or exceeds 40 hours.
DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends the injuries he received in the service caused or contributed to his disciplinary problems, there is no evidence of record which shows he was diagnosed with any medical conditions that would render him incompetent to stand trial or assist in his defense prior to his discharge on 12 October 2007.

2.  The available evidence of record does not support the applicant's contention that an Army psychiatrist recommended that he be discharged for medical conditions.  On 21 January 2005, an Army psychiatrist diagnosed the applicant with antisocial personality disorder, alcohol addiction, and possible schizotypal personality disorder.  She stated that he did not have a tendency to be psychotic, that he was an intelligent young man, that he understood the difference between right and wrong, and that he was competent to stand trial and assist in his defense.

3.  Trial by 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 characterizes the misconduct for which the applicant was convicted.

4.  The applicant's record of service included one special court-martial conviction, one general court-martial conviction, and 525 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

6.  Orders show the applicant received two awards of the Army Achievement Medal.  Therefore, his DD Form 214 should be corrected to show two awards of the Army Achievement Medal.

7.  Based on the applicant's service in Iraq, he is eligible for award of the Iraq Campaign Medal with one bronze service star.

8.  There is no evidence of record and the applicant has provided no evidence which shows he completed the Air Assault course.  Therefore, there is insufficient evidence on which to base award of the Air Assault Badge in this case.

9.  The certificates provided by the applicant which show he completed the 
40-hour Combat Lifesaver Course in August 1999, the 17-week Chemical Operations Specialist Class in June 1999, the 40-hour Italian Headstart Course in March 2002, and the 80-hour V Corps Officer/Noncommissioned Officer NBC Defense Course in August 2002 are accepted as sufficient evidence on which to amend item 14 of his DD Form 214.

10.  The applicant provided documentation which shows he completed 8 hours of instruction on the Operation and Safety Procedures of the Chemical Agent Alarm and a 24-hour training course.  The toxic agent training certificate does not indicate how long the course was.  Since the governing regulation for recording entries on military records states that successful completion of military schools and courses if attendance equals or exceeds 40 hours will be entered, there is no basis for granting the applicant's request to show these training courses in item 14 of his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____x___  ____x____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  adding two awards of the Army Achievement Medal and the Iraq Campaign Medal with one bronze service star to item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214; 

	b.  deleting the entry in item 14 of his DD Form 214; and

	c.  amending item 14 of his DD Form 214 to show he completed the 1-week Combat Lifesaver Course in August 1999, the 17-week Chemical Operations Specialist Class in June 1999, the 1-week Italian Headstart Course in March 2002, and the 2-week V Corps Officer/Noncommissioned Officer NBC Defense Course in August 2002.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his bad conduct discharge, amending his DD Form 214 to show the Air Assault Badge, or that he completed the Radioactive Materials Handling Safety Course, the Operation and Safety Procedures for Chemical Agents Course, or toxic agent training.



      ____________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)                                         AR20090009154





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ABCMR Record of Proceedings (cont)                                         AR20090009154



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