BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100024362 


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 earlier petitions requesting his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD) as a matter of clemency.  

2.  The applicant states he was a good Soldier up until he was hurt when he was hit in the head by a 50 caliber machine gun.  He claims his injury resulted in his receiving 6 stitches, a broken nose and jaw, and 2 crushed vertebras in his neck.  He also states he was required to stay in the field for 10 more days after his injury because he was the best.  

3.  The applicant provides a Congressional Inquiry packet with self-authored statement as new evidence in support of his request.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant’s case be reopened and to be provided the opportunity to submit further briefs in support of the applicant’s prior requests that his BCD be upgraded; and personal appearance before a traveling panel of the Board or by telephone.  

2.  Counsel states the applicant previously requested an upgrade of his discharge that was denied.  He states a subsequent request was made but it was dismissed as untimely; however, since the time of the applicant’s discharge, the Army’s understanding of TBI had not developed to the level currently achieved.  


3.  Counsel claims numerous motor vehicle accidents and road side bombs have shown the effect of TBI and the need for treatment to address TBI.  He states the applicant submits his poor judgment that resulted in his court-martial was caused to a great extent by his TBI.  Counsel states although this does not excuse his misconduct, the applicant is requesting this factor be considered in deciding whether or not to upgrade his discharge.  The applicant contends the current characterization of his discharge does not adequately reflect the quality of his service prior to the injury.  

4.  Counsel provides the following documents as new evidence in support of the reconsideration request:

* Request to Reopen the Record 
* Applicant Affidavit
*  Brief in Support of Request
* Mental Residual Functional Capacity Questionnaire (12 August 2004)
* Neuropsychological Assessment (9 May 2003)
* Neuropsycologist Letter (2 April 2004
* Application for Review of Discharge (DD Form 293)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2003096771, on 29 June 2004; and in Docket Number AR20050001721, on 20 October 2005.  

2.  After reviewing the neuropsychologist assessment and all other medical evidence submitted by the applicant in 2003 and 2005, and evaluating the impact of his head injury on his misconduct, the Board during both prior reviews of this case found insufficient evidence to support a conclusion there was a casual relationship between the applicant’s head injury and the misconduct that led to his court-martial and resultant discharge.  

3.  The applicant and his counsel now provide legal briefs with new argument that suggests the applicant suffered from a Traumatic Brain Injury (TBI) that mitigated the misconduct that resulted in his court-martial and discharge, and that the Army is now more aware of the possible negative impacts of TBI on an individual’s performance.  The supporting medical evidence submitted was available to and considered by the Board during its two prior reviews of this case.  


4.  There are no military medical records in the record or provided by the applicant that show he suffered from a disabling TBI that rendered him unfit from further service at the time he committed the misconduct that led to his discharge.  Further, there is no indication that the applicant raised his head injury as a mitigating factor during his court-marital.  

5.  On 25 August 1999, a special court-martial found the applicant guilty, pursuant to his pleas, of using cocaine and stealing M21 simulators.  The resulting approved sentence was a reduction to private/E-1, forfeiture of $600.00 per month for 6 months, confinement for 4 months, and a BCD.  The findings and sentence of the court-marital was affirmed through the appellate process and the sentenced duly executed on 7 June 2001, and the applicant was discharged with a BCD accordingly on 11 July 2001.  At the time of his discharge he had completed a total of 9 years and 4 months of creditable active military service and had accrued 100 days of time lost due to confinement.  

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 contains guidance on discharge by reason of court-martial.  It states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and only after the appellate process is completed and the affirmed sentence ordered duly executed.  

7.  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.

8.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Chapter 2, Section IV, provides guidance on ABCMR hearings.  It states applicant do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  The ABCMR does not conduct traveling panel hearings.  



DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant and his counsel that there was a causal relationship between the applicant’s head injury and the misconduct that led to his court-marital and discharge has been carefully reconsidered.  However, there is no new evidence or argument not previously considered during the two prior reviews of this case that support this claim.  

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  In this case, the evidence reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  

3.  The evidence of record contains no military medical records and the applicant has failed to provide any that show his head injury rendered him unfit for further service or impacted his ability to distinguish right from wrong and to adhere to the right.  Further, the independent civilian medical evidence is also not compelling enough to establish a causal relationship between his head injury and the offenses he committed that resulted in his court-marital and BCD.  As a result, there is an insufficient evidentiary basis to support clemency in this case.  

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement or that would amendment of the previous two Board decisions in this case.  Further, there is no evidence a personal appearance hearing is necessary to serve the interest of justice in this case. 

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 to amend the decisions of the ABCMR set forth in Docket Number AR2003096771, dated 29 June 2004; and Docket Number AR20050001721, dated 20 October 2005.  




      _______ _  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)                                         AR20100024362



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ABCMR Record of Proceedings (cont)                                         AR20100024362



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