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 Soldiers 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 applicants 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.
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