IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090017257 


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 to a general discharge.

2.  The applicant states, in effect, that he is a combat veteran of Operation Iraqi Freedom, having served two combat tours.  He states that prior to his court-martial he never got into any trouble with the Army.  He says he is truly sorry for what he did.  He continues by saying he has two children and finds it difficult to work because of his pain.

3.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 27 February 2009;
* Enlisted Record Brief, dated 22 October 2007;
* medical evaluation board (MEBD) narrative summary, dated 21 March 2007;
* DA Form 3822 (Report of Mental Status Evaluation), dated 1 June 2007;
* neuropsychological evaluation, dated 26 September 2007; and
* memorandum, dated 24 October 2007, from a psychiatrist at the 785th Medical Company (Combat Stress Control), Camp Taji, Iraq



CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 July 1997 for a 3-year period.  He completed basic combat and advanced individual training meeting the qualification standards for military occupational specialty 11B (Infantryman).

2.  The applicant's Enlisted Record Brief shows he served two tours of duty in Iraq from 13 January 2003 to 21 August 2003 and from 19 January 2005 to 18 January 2006.  His first tour was with Headquarters Company, 3rd Brigade, 3rd Infantry Division, during the beginning of combat operations in Iraq.

3.  The applicant's official military personnel file does not contain any records or awards for acts of valor or heroism.  He received the Army Commendation Medal for meritorious achievement while serving in the Iraq from 20 March 2003 to 14 April 2003.

4.  On 25 October 2007, the applicant was convicted by a general court-martial of wrongfully appropriating two government computers with a value greater than $500.00 and for making a false official statement concerning the location of the government computers.  His sentence was confinement for 10 months, reduction to the grade of private/pay grade E-1, and a bad conduct discharge.

5.  On 25 February 2008, the convening authority approved only so much of the sentence that included confinement for 116 days, reduction to the grade of private/pay grade E-1, and a bad conduct discharge.

6.  On 16 May 2008, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

7.  On 26 August 2008, the U.S. Court of Appeals for the Armed Forces denied the applicant's appeal request.

8.  On 18 September 2008, the applicant's bad conduct discharge was ordered to be duly executed.

9.  On 27 February 2009, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations) based on his conviction by a court-martial.  His service was characterized as bad conduct.  His net active service was 11 years, 3 months, and 10 days with time lost from 25 October 2007 to 25 February 2008.

10.  In support of his application, he provides the following documents which are summarized as follows:
	a.  An MEBD narrative summary, dated 21 March 2007, shows his diagnoses as:

* herniated disc with spondylolisthesis at L5S1 with constant moderate lumbago
* left cubital tunnel syndrome with constant moderate pain
* left foot pain secondary to foot fracture
* migraine headaches with intermittent moderate pain

	b.  The medical examination determined the applicant failed to meet the retention criteria in accordance with Army Regulation 40-501 (Standards of Medical Fitness).  His military physical profile serial system factors, known as PULHES, changed to:

* P3 – physical capacity or stamina
* U3 – upper extremities
* L3 – lower extremities 
* H2 – hearing and ears
* E1 – eyes
* S1 – psychiatric

	c.  A DA Form 3822 (Report of Mental Status Evaluation), dated 1 June 2007, shows the applicant was admitted to the inpatient psychiatry ward for suicidal gestures.  Upon evaluation, the doctor found the applicant fully alert and oriented, but suspicious.  His mood and affect show he was anxious with clear thinking processes, fair memory, and normal thought content.  The evaluating psychiatrist diagnosed the applicant with:

* depressive disorder and anxiety disorder (not otherwise specified)
* antisocial traits
* legal, occupational, and partner relational problems
* chronic headache, back, elbow, and foot pain

	d.  The doctor concluded his report by recommending the applicant be allowed to separate from military service acknowledging the applicant had been charged with the theft of government property, but the property was returned to military control.

	e.  A neuropsychological evaluation, dated 26 September 2007, shows the applicant was evaluated by a licensed psychologist and clinical neuropsychologist.  A series of psychological tests were administered, including a mental status evaluation, intelligence test, memory scale assessment, Delis Kaplan Executive Function Systems tests, and a personal assessment inventory.  During the evaluation and testing, the applicant appeared depressed, anxious, sullen, and extremely frustrated.  In addition, the doctor stated that the applicant was at risk for suicidal acting out.  The doctor diagnosed the applicant with:

* cognitive disorder (not otherwise specified)
* post-traumatic stress disorder
* major depressive disorder
* percussive traumatic brain injury secondary to exposure to eight blasts from improvised explosive devices 
* chronic pain from back injury

	f.  A psychiatrist at the 785th Medical Company (Combat Stress Control), Camp Taji, Iraq, stated by memorandum, dated 24 October 2007, that the applicant had a depressed mood and exhibited anxiety during the three evaluations.  The doctor asked the court for leniency and requested that it review his whole service record, which was relatively good.

11.  References:

	a.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that a Soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial that cannot adjudge such a sentence, the case may be referred for disability processing.

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	c.  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 applicant contends that his bad conduct discharge should be upgraded to a general discharge.

2.  The evidence shows the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized judgment of the members of the court-martial.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited 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.

4.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant’s request to upgrade his discharge at this time.

5.  While the applicant provided medical evidence to show his PULHES was adjusted after an MEBD health examination determined he was unfit to perform the duties of his MOS and grade, to include being depressed and anxious, it is not sufficient to warrant upgrading a properly-issued discharge.

6.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to general under honorable conditions.

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)                                         AR20090017257





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ABCMR Record of Proceedings (cont)                                         AR20090017257



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