IN THE CASE OF:	

		BOARD DATE:	1 December 2009  

		DOCKET NUMBER:  AR20090009973 


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 an upgrade of his bad conduct discharge.  

2.  The applicant states that after his return from Iraq, he suffered from Post Traumatic Stress Disorder (PTSD) but thought he could get over it once he was adjusted back to life at Fort Bragg, NC.  He adds that he had been selected for promotion to sergeant and had a great career ahead of him.  He was also caring for his high-risk pregnant wife and her ill father at the same time.  However, he was ordered to redeploy to Iraq for a 3-month security detail and just hours before deployment, his wife went into labor.  He rushed her to the hospital and in his panic missed movement.  He was subsequently court-martialed and received a characterization of service that greatly affected his ability to obtain gainful employment.  He also adds that he has since suffered from depression and thoughts of suicide.  An upgrade of his discharge would not only allow him to work but also give him access to much needed Department of Veterans Affairs medical benefits to treat his PTSD and depression.  

3.  The applicant provides a copy of a DA Form 638 (Recommendation for Award), dated 5 December 2003, showing award of the Army Commendation Medal in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 19 June 2001.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist/E-4.  He was assigned to Company C, 3rd Battalion, 325th Airborne Infantry Regiment, Fort Bragg, NC.  

2.  The applicant's records further show that he served in Iraq from what appears to be on or about 14 February 2003 to on or about 27 January 2004.  His records also show he was awarded the Army Commendation Medal, the Presidential Unit Citation, the Good Conduct Medal, the National Defense Service Medal, the Combat Infantryman Badge, and the Parachutist Badge.  

3.  On 18 February 2005, the applicant pled guilty at a General Court-Martial to one specification of being absent without leave (AWOL) from on or about 5 December 2004 through on or about 10 December 2004 and one specification of missing movement by design of his unit on or about 5 December 2004. The Court sentenced him to confinement for 12 months and a bad conduct discharge. He was transferred to the Fort Knox, KY, Regional Correctional Facility, for service of his sentence to confinement.

4.  On 15 April 2005, the convening authority approved the applicant’s sentence and except for that part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.  Additionally, a waiver of the automatic forfeiture of pay was granted on 4 March 2005 in the amount of $1,000.00 per month for 3 months with the understanding that the monies be paid to the benefit of the applicant's spouse and child.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Criminal Appeals

5.  On 9 November 2005, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  On 12 January 2006, the U.S. Court of Appeals of the Armed Forces denied the applicant's petition for grant of review. 

7.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 51, dated 16 February 2006, 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 28 April 2006.  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), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 4 years and 15 days of creditable military service and had 298 days of lost time.

9.  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.

10.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.  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.  

11.  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 contends that his discharge should be upgraded.

2.  With respect to the applicant’s overall service, the applicant’s specialized training, combat service in Iraq, care for his family, and his desire to become an outstanding member of the society are noted; however, they are not sufficiently mitigating to grant him the requested relief.  Furthermore, there is no evidence in the available records and the applicant did not provide any evidence that shows his actions were a result of his PTSD or that he has been diagnosed as suffering from PTSD.  

3.  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.  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.

4.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general discharge.

5.  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, he is not entitled to 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)                                         AR20090009973



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ABCMR Record of Proceedings (cont)                                         AR20090009973



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