IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100024234 


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 reconsideration of his previous application for upgrade of his bad conduct discharge (BCD) to a general discharge (GD).  He also submitted a new request for correction of his record to change the narrative reason for his separation to "medical."

2.  He states he is providing documentation showing he was diagnosed with a medical condition by a psychiatrist before his court-martial proceedings for which he should have been medically discharged.

3.  He provides:

* a memorandum, dated 21 January 2005, from the Chief, Behavioral Health, U.S. Army Health Clinic, Vicenza, Italy
* pages from the personality disorders section of the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition
* Department of Veterans Affairs (VA) medical records

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090009154 on 15 September 2009.

2.  The applicant submitted a new argument which was not previously considered by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  He enlisted in the Regular Army on 4 February 1999 for a period of 3 years for military occupational specialty 54B (chemical operations specialist) and he reenlisted on 20 July 2001 for a period of 4 years.

4.  He provides a memorandum from the Chief, Behavioral Health, U.S. Army Health Clinic, Vicenza, Italy, dated 21 January 2005.  The record shows this document was considered in ABCMR Docket Number AR20090009154.

5.  In her memorandum, the psychiatrist stated she had been treating him since August 2004 when he referred himself on the advice of his attorney.  She was aware of his criminal charges.  She diagnosed him with antisocial personality disorder, alcohol addiction, and possible schizotypal personality disorder.  She stated he did not have a tendency to be psychotic, but had periodic illusions in the form of religious "shadows" that were a part of his personal religion.  She stated he understood the difference between right and wrong and was competent to stand trial and assist in his defense.  She stated that although patients with schizotypal personality disorder can develop schizophrenia disorders, she had not seen this tendency in him.  She also stated that with his diagnoses, it would have been her recommendation to the applicant's commander to separate him administratively before any of the misconduct occurred.

6.  On 27 January 2005, he was convicted by a general court-martial of larceny, violating two lawful regulations, assault, endeavoring to impede an investigation, and making a false official statement.  He was sentenced to forfeit all pay and allowances, to be reduced to E-1, to be confined for 3 years, and to be discharged with a BCD.  On 16 June 2005, the convening authority approved only so much of the sentence as provided for forfeiture of all pay and allowances, a reduction to E-1, confinement for 15 months, and a BCD.

7.  On 4 April 2006, he was convicted by a special court-martial of assault.  He was sentenced to be confined for 6 months.  On 4 January 2007, the convening authority approved the sentence.

8.  On 4 January 2007, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence from his first court-martial.

9.  On 7 June 2007, the convening authority ordered the BCD to be executed.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 12 October 2007.  He completed a total of 7 years, 2 months, and 27 days of total active service with 525 days of lost time due to confinement.

11.  His DD Form 214 shows in:

* item 24 (Character of Service) – bad conduct
* item 25 (Separation Authority) – Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3
* item 26 (Separation Code) – JJD
* item 28 (Narrative Reason For Separation) – court-martial, other

12.  His service medical records are not available for review.

13.  The VA medical records he provides show he initiated medical care through the VA in November 2008.  Since then, he has received treatment for post-traumatic stress disorder, neck and back pain, chronic headaches, chronic mild allergic conjunctivitis, and a ganglia cyst on his wrist.  His VA medical records also show a history of traumatic brain injury.

14.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Chapter 3 states that a Soldier will be given a BCD 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.

	b.  Paragraph 3-7b provides that a GD 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.

	c.  Paragraph 5-13 provided that a Soldier could be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interfered with assignment to or performance of duty.  This regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty.  This regulation also directed that commanders would not take action prescribed in this chapter in lieu of disciplinary action, required that the diagnosis concluded the disorder was so severe that the Soldier's ability to function in the military environment was significantly impaired, and stated that separation for personality disorder was not appropriate when separation was warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15 of Army Regulation 604-10 (Military Personnel Security Program) or under Army Regulation 635-40.

15.  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 the ABCMR 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.

16.  Army Regulation 635-40 establishes policies and prescribes procedures for the physical disability evaluation of members of the Army for retention, retirement, or separation.  This regulation is not applicable to members charged with offenses for which dismissal or a punitive discharge may be adjudged by a court-martial.

17.  Army Regulation 635-5 (Separation Documents) states item 28 of the DD Form 214 will be completed as shown in Army Regulation 635-5-1 (Separation Program Designators).  Army Regulation 635-5-1 states the narrative reason for separation is "court-martial, other" for Soldiers separated with separation code "JJD" under the provisions of Army Regulation 635-200, chapter 3.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for upgrade of his BCD to a GD or his request for correction of his record to change the narrative reason for his separation to "medical."

2.  An Army psychiatrist stated she would have recommended to his commander that he be administratively separated if she had made her diagnoses prior to his misconduct.  Regardless of that statement, she found him competent to stand trial and assist in his defense and found he understood the difference between right and wrong.

3.  He was charged with offenses for which dismissal or a punitive discharge could be adjudged by a court-martial.  He was convicted, sentenced to a BCD, and the conviction and sentence were affirmed.  Therefore, he could not be processed for separation or discharge under regulatory provisions governing physical disability or regulatory provisions governing separation for personality disorder.

4.  His discharge appropriately characterizes the misconduct for which he was convicted and his DD Form 214 shows the correct narrative reason for his discharge.

5.  In view of the foregoing, there is no basis for granting the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Regarding the applicant's request for reconsideration of his previous application for upgrade of his BCD to a GD, the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this issue are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090009154, dated 15 September 2009.

2.  Regarding changing the narrative reason for separation to "medical," the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this issue 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)                                         AR20100024234



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ABCMR Record of Proceedings (cont)                                         AR20100024234



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