IN THE CASE OF:	  

		BOARD DATE:	    23 February 2010

		DOCKET NUMBER:  AR20090015988 


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 to a general, under honorable conditions discharge. 

2.  The applicant states that during his military service he suffered from chronic Post Traumatic Stress Disorder (PTSD), alcohol dependence, and cannabis dependence.  The alcohol and cannabis dependency are self-medication because of his PTSD from Iraq that led to his bad conduct discharge. He adds that he also had two knee surgeries while in the military.  He still needs medical and psychiatric treatment but has no healthcare and is in desperate need of Department of Veterans Affairs (DVA) benefits.  He made mistakes in the past and now regrets them.  He is trying to bounce back from his mistakes; but, it is hard because of his bad conduct discharge.  He cannot receive educational benefits; but, if his discharge is upgraded, he can get his life back together. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 June 2009; a copy of his chronological record of medical care, dated 18 October 2007; a copy of his knee surgery and/or diagnosis report, dated 2 February 2007; a copy of his hospital discharge note, dated 14 December 2007; a copy of his Enlisted Record Brief, dated 31 January 2008; copies of several certificates and/or orders, dated on miscellaneous dates throughout his military service and showing awards of the Good Conduct Medal, Army Commendation Medal, Combat Action Badge, Parachutist Badge, Driver Badge, and Combat Lifesaver Course in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) for a period of 4 years on 24 January 2002.  He completed basic combat and advanced individual training and was awarded military occupational specialty 92G (Food Service Operations Specialist).  He also executed a 4-year reenlistment in the RA on 5 April 2005.  The highest rank/grade he attained during his military service was specialist/E-4.

2.  The applicant's records also show he served in Iraq in support of Operation Iraqi Freedom and Afghanistan in support of Operation Enduring Freedom.  His records further show he was awarded the Good Conduct Medal, the National Defense Service Medal, the Army Commendation Medal, the Combat Action Badge, the Global War on Terrorism Service Medal, and the Army Service Ribbon. 

3.  On 1 February 2008, the applicant pleaded guilty at a general court-martial to one specification of violating a general regulation by wrongfully possessing drug paraphernalia on or about 26 July 2007; one specification of wrongfully using marijuana on divers occasions between on or about 15 December 2006 and 26 June 2007; one specification of wrongfully introducing with intent to distribute 400 grams of marijuana between on or about 26 June 2006 and 26 June 2007; one specification of wrongfully distributing approximately 400 grams of marijuana between on or about 26 June 2006 and 26 June 2007; one specification of wrongfully possessing 1.6 grams of marijuana on or about 26 June 2007; one specification of striking a military police Soldier on the chest with his forehead on or about 15 July 2007; one specification of attempting to kick a German police officer several times in the leg on or about 15 July 2007; one specification of being drunk and disorderly on or about 15 July 2007; and one specification of attempting to wrongfully use methamphetamine on or about 26 June 2007.  The court sentenced him to a forfeiture of all pay and allowances, confinement for 12 months, and a bad conduct discharge.  The sentence was adjudged on 1 February 2007.

4.  On 3 July 2008, the convening authority approved the sentence and except for that part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.

5.  On 3 December 2008, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence.

6.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, General Court-Martial Order Number 59, dated 31 March 2009, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

7.  The applicant was discharged from the Army on 15 June 2009.  The DD Form 214 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 6 years, 7 months, and 8 days of creditable military service and 288 days of lost time due to being in confinement.

8.  The applicant submitted the following documentation in support of his request:

	a.  Copies of several certificates and/or orders, dated on miscellaneous dates throughout his military service and showing awards of the Good Conduct Medal, Army Commendation Medal (in support of Operation Iraqi Freedom), Combat Action Badge, Parachutist Badge, Driver Badge (engaged by the enemy on 15 August 2005), and Combat Lifesaver Course (completed in Iraq on 29 November 2003);

	b.  A copy of his chronological record of medical care, dated 18 October 2007, that shows he was referred for drug and alcohol abuse counseling;

	c.  A copy of a doctor's note, dated 2 February 2007, that shows a diagnosis of a knee condition.

	d.  A copy of a hospital discharge note, dated 14 December 2007, that shows he was hospitalized for 1 month in a German psychiatric unit subsequent to a suicide attempt after court-martial charges were referred against him.

9.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States 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 referral to a psychiatric clinic and his knee condition, these were also noted; however, they are not sufficiently mitigating to grant him the requested relief.  Furthermore, there is insufficient evidence in the available records that shows his conviction for using, introducing, and distributing illegal drugs was a result of any medical condition.

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.  The ABCMR does not does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  After a review of his entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  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 sufficient evidence that would satisfy this requirement.  Therefore, he is not entitled 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)                                         AR20090015988



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ABCMR Record of Proceedings (cont)                                         AR20090015988



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