Search Decisions

Decision Text

ARMY | BCMR | CY2009 | 20090013163
Original file (20090013163.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	    9 March 2010

		DOCKET NUMBER:  AR20090013163 


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, an upgrade of his bad conduct discharge to a general discharge.  

2.  The applicant states, in effect, that he desires to have his discharge upgraded so that he may be eligible for further treatment of Post Traumatic Stress Disorder (PTSD) through the Department of Veterans Affairs.  He states that his military record was excellent until he started using drugs to self medicate.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Regular Army on
3 April 2002 and reenlisted on 18 June 2004 for a period of 6 years in his previously awarded military occupational specialty (MOS), 11B (Infantryman) and in pay grade E-4. 

2.  The dates of the applicant's combat service are not contained in the available records.

3.  On 3 November 2006, the applicant was convicted by a general court-martial for the following offenses: willfully disobeying an order given by his superior commissioned officer; violating a lawful general regulation; wrongfully possessing with the intent to use, drug paraphernalia, to include a syringe and a spoon; wrongfully using Methadone, a schedule II controlled substance; wrongfully using Oxycodone (Oxycontin), a schedule II controlled substance; wrongfully distributing approximately 15 pills of Methodone; wrongfully distributing some amount of Morphine, a schedule II controlled substance;  wrongfully distributing some amount of Oxycodone; wrongfully using Morphine; and wrongfully using Oxymorphone.

4.  The court sentenced the applicant to a reduction to pay grade E-1; a forfeiture of all pay and allowances; confinement for 13 months; and a bad conduct discharge.  

5.  General Court-Martial Order Number 103, dated 16 April 2008, issued after completion of appellate review, ordered the execution of the bad conduct discharge. 

6.  On 29 September 2008, the applicant was discharged from active duty with a bad conduct discharge.  He was credited with completing 5 years, 11 months, and 25 days of active service.  He also had 132 days of lost time due to being in confinement. 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the sentence ordered duly executed.

8.  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.

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 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 available evidence shows the applicant’s 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 characterized the misconduct for which the applicant was convicted.  By law the Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  The applicant has failed to establish a basis for clemency.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, there must be evidence that show, or it must satisfactorily appear, that the record is in error or unjust.  The applicant failed to submit any evidence that would satisfy this requirement.

4.  No medical records were available for review.  However, the available evidence does not show the applicant was suffering from PTSD or that he had any other medical condition at the time of discharge.

5.  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)                                         AR20090013163



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013163



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2011 | 20110007982

    Original file (20110007982.txt) Auto-classification: Denied

    Special Court-Martial Order Number 10, dated 9 February 2001, shows the sentence as modified by the U.S. Army Court of Criminal Appeals was affirmed and that portion of the sentence pertaining to confinement had been served. It shows the appellate review was completed and the bad conduct discharge was ordered executed. While the applicant contends that he was set up by CID, that the ruling was unfair, and that he committed no wrong, he provided no evidence to support these contentions.

  • ARMY | BCMR | CY2015 | 20150002322

    Original file (20150002322.txt) Auto-classification: Denied

    He was sent home addicted and no effort was made to address his addiction. The AG stated the command takes seriously its responsibility in assisting their Soldiers from using and or abusing drugs and alcohol. The applicant was not discharged for drug abuse.

  • ARMY | BCMR | CY2014 | 20140013129

    Original file (20140013129.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 26 March 2015 DOCKET NUMBER: AR20140013129 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests an upgrade of his bad conduct discharge (BCD) to an honorable discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

  • ARMY | BCMR | CY2005 | 20050000982C070206

    Original file (20050000982C070206.doc) Auto-classification: Denied

    The applicant’s case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial. The evidence shows that the applicant's sentence was affirmed and ordered executed. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.

  • ARMY | BCMR | CY2005 | 20050000982C070206

    Original file (20050000982C070206.TXT) Auto-classification: Denied

    The applicant’s case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial. The evidence shows that the applicant's sentence was affirmed and ordered executed. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.

  • ARMY | BCMR | CY2009 | 20090008738

    Original file (20090008738.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 14 OCTOBER 2009 DOCKET NUMBER: AR20090008738 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. 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. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

  • ARMY | BCMR | CY2012 | 20120002109

    Original file (20120002109.txt) Auto-classification: Denied

    BOARD DATE: 7 August 2012 DOCKET NUMBER: AR20120002109 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests an upgrade of his bad conduct discharge (BCD) to a general discharge. U.S. Army Court of Criminal Appeals, Notice of Court-Martial Order Correction, dated 26 January 2009, corrected the sentence in the case of the applicant to reduction to pay grade of E-1, a forfeiture of all pay and allowances, confinement for 8 months and 15 days, and a BCD.

  • ARMY | BCMR | CY2012 | 20120019298

    Original file (20120019298.txt) Auto-classification: Denied

    The applicant requests an upgrade of his bad conduct discharge to a general discharge. 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. c. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions.

  • ARMY | BCMR | CY2014 | 20140004384

    Original file (20140004384.txt) Auto-classification: Denied

    The applicant requests his dishonorable discharge be upgraded to an under other than honorable conditions discharge. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, by reason of court-martial, with a dishonorable discharge. His conviction, confinement, and discharge were effected in accordance with applicable laws and...

  • ARMY | BCMR | CY2013 | 20130017393

    Original file (20130017393.txt) Auto-classification: Denied

    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. On 1 December 2005, he was apprehended by German police for driving under the influence. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct...