BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090015324 


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.

2.  The applicant states, in effect, that after returning from Desert Storm, he was emotionally traumatized and experienced a high level of stress due to his horrific war experience.  These experiences caused him to suffer from Post Traumatic Stress Disorder (PTSD) and ultimately led to a relapse of childhood addiction.  He also states that for the record, he still suffers from a disorder and is currently seeking help.  He believes his service to his country was far more than honorable until this mishap which is the only scar on his service record.  

3.  The applicant did not provide any additional documentary evidence in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 2 October 1989 and he held military occupational specialty 54B (Chemical Operations Specialist).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  The applicant's records show he served in Germany from 18 March 1990 to 6 October 1991.  He also served in Southwest Asia in support of Operations Desert Shield/Storm from 21 December 1990 to 20 May 1991.

4.  His records show he was awarded the Army Service Ribbon, the National Defense Service Medal, the Overseas Service Ribbon, the Army Achievement Medal, the Army Commendation Medal, the Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars, the Southwest Asia Service Medal with 3 bronze service stars, and the Kuwait Liberation Medal.

5.  The applicant's records also show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates:

	a.  On 19 February 1992, for failing to go to his appointed place of duty at the time prescribed on or about 30 January 1992.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $228.00 pay, and 14 days of restriction (all suspended until 19 August 1992 except for the 14 days of extra duty); and 

	b.  On 2 July 1992, for failing to go at the time prescribed to his appointed place of duty on three separate occasions on or about 20 May, 19 June, and 22 June 1992.  His punishment consisted of a reduction to PFC/E-3, a forfeiture of $400.00 pay for 2 months, 45 days of restriction (all suspended until 2 January 1992), except for the 45 days of extra duty.

6.  On 7 August 1992, his immediate commander initiated a bar to Reenlistment Certificate against the applicant.  The commander cited the applicant's NJP as well as several counseling statements as the basis for the bar.  The applicant was provided a copy of the bar, and he elected not to make a statement on his own behalf.  The battalion commander ultimately approved the bar.




7.  On 6 October 1992, he pled guilty at a special court-martial to two specifications of wrongfully using cocaine between on or about 5 July and 8 July 1992 and 14 July and 17 July 1992.  The court sentenced him to confinement for 2 months, a forfeiture of $200.00 pay for 2 months, and a bad conduct discharge. 

8.  On 1 December 1992, the convening authority approved the sentence and ordered it executed except for the bad conduct discharge.  He also ordered the record of trial to be forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

9.  On 26 May 1993, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

10.  He was discharged from the Army on 18 October 1993.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with a bad conduct discharge.  It also shows he completed a total of 3 years, 10 months, and 28 days of creditable military service and he had 48 days of lost time.

11. The available evidence does not show the applicant suffered from PTSD, stress, or any medical condition.  

12.  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.  

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record 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 he 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.

3.  Contrary to his assertion that the court-martial mishap was the only scar on his service record, his records reflect two instances of NJP and a bar to reenlistment for various infractions.

4.  There is no evidence in his available records and he did not provide any evidence that shows he suffered from PTSD or any other medical condition subsequent to his service in Southwest Asia or that such service caused him to use cocaine on two occasions.  

5.  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 his discharge to either an honorable or a general discharge.

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)                                         AR20090015324



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ABCMR Record of Proceedings (cont)                                         AR20090015324



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