IN THE CASE OF:	

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090014627 


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.

2.  The applicant states, in effect, that he served honorably during the period May 2002 through January 2005.  He also states that he served 27 months in confinement in the Regional Correctional Facility located at Fort Knox, Kentucky, as punishment for his mistake.  He contends he is a good-hearted person and has corrected his ways.  Due to his mistake, he lost his wife, his son, his friends, and an opportunity to serve his country in the future.  He works hard, pays his bills, loves his child, and is proud that he served in the Army.  He is an active participant in church and Narcotics Anonymous and Alcoholics Anonymous programs.  He adds that he desires to work for the Salvation Army and become a Soldier of Christ.  He asks that the members of the Board forgive him because he has learned from the mistake he made while under the influence of cocaine.  He admits that he hurt the Soldiers with whom he served and concedes that he cannot undo his actions.  He concludes that when he was released from confinement, he made a vow to himself and God that he would never make a mistake as serious as the one he made previously, and he has been holding to that promise.

3.  The applicant provides a letter from a Salvation Army program counselor, two certificates of recognition, a certificate of completion of training, a letter from his wife, a letter from a clinical social worker, and two information papers as evidence in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 2 May 2002.  He completed basic combat training and advanced individual training (AIT).  Upon completion of AIT the applicant was awarded military occupational specialty (MOS) 77F (Petroleum Supply Specialist) which was redesignated as 92F at a later date.  The highest rank he attained while serving on active duty was sergeant (SGT)/pay grade E-5.  However, at the time of his separation he held the rank of private (PV1)/pay grade E-1.

2.  Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina, General Court-Martial Order Number 8, dated 1 March 2007, shows the applicant was tried and convicted by a General Court-Martial.  He was found guilty of numerous specifications of violation of Articles 86, 92, 112a, and 134 of the Uniform Code of Military Justice for offenses which included:  failure to go at the time prescribed to his appointed place of duty; wrongful use of cocaine; wrongful possession of an explosive, incendiary, and pyrotechnic device; and dishonorably failing to maintain sufficient funds for payment of checks and dishonorably failing to place sufficient funds in his bank for payment of checks.  As a result of his conviction, the applicant was sentenced to be reduced to the grade of PV1/E-1, to be confined for a period of four years, and to be discharged from the service with a bad conduct discharge.  The sentence was adjudged on 14 December 2006.  The convening authority approved only so much of the sentence as provided for 30 months confinement, reduction to PV1/E-1, and a bad conduct discharge.

3.  Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, General Court-Martial Order Number 217, dated 27 September 2007, shows the applicant's aforementioned sentence had been finally affirmed.  The appellate review according to Article 71(c) had been complied with and the bad conduct discharge was directed to be executed.

4.  Headquarters, U.S. Army Armor Center and Fort Knox, Orders 025-0181, dated 25 January 2008, assigned the applicant to the U.S. Army Transition Point for transition processing with a reporting date and discharge date of 1 February 2008.

5.  The record shows that on 1 February 2008, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time shows the applicant completed a total of 4 years, 4 months, and 18 days of creditable active military service during his period of enlistment.  This form also shows the applicant had time lost during the period 20 September 2006 through 1 February 2008.  His service was characterized as "Bad Conduct."
6.  The applicant provides an undated letter from his wife which was addressed "To whom it may concern."  In this letter, his wife states, in effect, that she believes her husband should receive clemency because he returned from his deployment to Iraq as a different man.  She further states that following his deployment, the applicant became irritable, had no patience, did not sleep well, was not coming home in a timely fashion, and had become distant toward her and their son.

7.  The applicant provides a letter from a clinical social worker assigned at the U.S. Marine Corps Brig (USMC Brig CLNC) located at Camp Lejeune, North Carolina, dated 13 December 2006.  The clinical social worker stated the applicant was confined in the USMC Brig CLNC on 22 September 2006 in pretrial confinement.  She further stated the applicant completed a screening tool that indicated he met the criteria for Post Traumatic Stress Disorder (PTSD).  The clinical social worker noted the applicant was started on a regime of medications and was attending PTSD treatment group meetings on a weekly basis.  She noted the applicant's "PTSD was not so much connected with combat incidents, but several incidents in which body parts were found inside vehicle brought in for repair.  Some of the individuals he knew personally."  The clinical social worker opined that the applicant would "benefit from continued medication management and even more important, involvement in a treatment group."

8.  The applicant also provides information papers rendered by the aforementioned clinical social worker on the topics of PTSD and PTSD and crime, wherein she essentially opines that PTSD can affect an individual's ability to concentrate and make sound decisions.  She also opines that people who suffer from PTSD often turn to drugs and alcohol as a means of self medicating.  The author concludes that although "These factors do not preclude the knowledge of knowing right from wrong.  It interferes with the ability to respond to the right from wrong."

9.  The applicant provides a certificate from the Transportation Technology Center, Incorporated, Bureau of Explosives, dated 17 December 2008, which shows he attended training intended to provide a general awareness of loading and unloading hazardous materials.

10.  The applicant provides a letter from a Salvation Army program counselor based at the Dallas Adult Rehabilitation Center located in Dallas, Texas, which was addressed to the Veterans Administration Center located in Waco, Texas.  The program counselor stated, in effect, that the applicant had been at the rehabilitation center since 28 July 2009 and had been in good standing since his arrival.  He noted that the applicant had entered the center for the purpose of overcoming his addiction to alcohol and drugs and that he had successfully completed the prescribed program requirements of the center.  The counselor described the applicant's activities at the center and noted he had passed random urine analysis and breathalyzer tests.  He also opined that the applicant appeared to have excellent leadership qualities, a healthy concept of a good work ethic, a willingness to overcome his past history, and a desire to become a positive role model by contributing his best every day.  The counselor also noted that the applicant desired to reestablish his eligibility for whatever Veterans Administration benefits may be his.

11.  The applicant provides two certificates which acknowledge his successful completion of all requirements of Phase I and Phase II of the "Six Phase-Plus Program" of the Salvation Army in Dallas, Texas, on 26 August 2009 and 7 October 2009, respectively.

12.  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 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.

13.  Army Regulation 635-200 (Enlisted Separations), 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.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.


2.  The applicant's record reveals he committed numerous crimes which rendered him triable by court-martial for offenses punishable by a bad conduct or dishonorable discharge.  These crimes culminated in his trial by general court-martial which was warranted by the gravity of the offenses charged.  His 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.

3.  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 review of the applicant’s available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which he was convicted, it is also clear that his service was not satisfactory, thus did not meet the criterion for discharge under either general or honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded discharge.

5.  The facts that the applicant served honorably during the beginning of his enlistment is duly noted.  However, the applicant's service prior to his offenses and efforts to become a more positive member of society following his release from prison do not justify the fact that he committed a serious crime which rendered him triable by court-martial.

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)                                         AR20090014627





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ABCMR Record of Proceedings (cont)                                         AR20090014627



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