IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110003961 


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, his bad conduct discharge be upgraded.

2.  The applicant states:

	a.  He served in Iraq for 7 months and during that period he experienced numerous traumatic experiences.  They came under attack almost nightly and the aftereffects were bloody "mingled" bodies and body parts of people scattered all around.  He could not sleep, became a loner, and his concentration and memory was gone.  In spite of that, his first sergeant (1SG) told them they could not go on sick call to mental health and to deal with their problems the best they could.  The 1SG said he drank alcohol and to use whatever they had to.

	b.  On the day he was caught with pills, he had obtained them with the intent to commit suicide.  He was apprehended entering post and released that night.  It was then that two of his friends told him about an off-post mental health clinic and he went there for two weeks.  Shortly after that he was court-martialed for the drugs.  

	c.  Prior to his deployment, he was a good Soldier, an achiever, and he strived to do his best.  He feels if he had been allowed proper treatment and counseling he would have been able to continue to mature and grow as a Soldier.  His leadership gave terrible advice and told them that they would be chaptered if they went to mental health.  He was wrong but he could not handle life anymore and intended to take pills and die.  Prior to that he never touched drugs and has never taken drugs.
3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* A memorandum
* Seven certificates
* Two pages titled Psychological Evaluation - Narrative Summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 21 September 2006 and he held military occupational specialty 74D (Chemical Operations Specialist).  He was awarded the Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and the Army Service Ribbon.

2.  He served in Iraq from April to December 2007 while assigned to F Company, 2nd Battalion, 12th Infantry, 1st Infantry Division.

3.  Headquarters, Fort Carson, Fort Carson, CO, General Court-Martial Order Number 25, dated 16 June 2009, shows he pled guilty at a general court-martial to one specification of wrongfully introducing Ecstasy onto a military installation on 4 October 2008 and one specification of wrongfully possessing a prohibited weapon, metallic knuckles.  He was found guilty of both specifications and sentenced on 14 April 2009 to reduction to E-1, forfeiture of $299.00 per month for 6 months, confinement for 14 months, and a bad conduct discharge.  

4.  On 16 June 2009, the convening authority approved only so much of the sentence as provided for reduction to E-1, confinement for 12 months, and a bad conduct discharge and, except for the bad conduct discharge, ordered it executed.  The convening authority waived automatic forfeiture for 6 months or until applicant was released from confinement, whichever came first.

5.  Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 118, dated 4 June 2010, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

6.  On 30 September 2010, he was discharged from the Army.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial with a bad conduct characterization of service.  He completed 3 years, 2 months, and 22 days of creditable military service with 294 days of lost time due to confinement.
7.  The applicant provides a psychological evaluation, dated 3 March 2009, from the Deployment Recovery Counseling Center, Colorado Springs, CO, wherein it stated he had been seen at the center on 26 November 2008.  He had complained of having feelings of anger, depression, anxiety, memory issues nightmares, and insomnia that had not troubled him prior to his deployment to Iraq.  The counselor noted that clinical interviews and screening revealed symptoms consistent with post traumatic stress disorder and the possibility of a mild traumatic brain injury.

8.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  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.

10.  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 evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction, confinement, and discharge were effected in accordance with applicable law and regulations and his 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.
2.  After a review of his record of service, it is clear his service did not meet the criteria for an honorable discharge or a general discharge under honorable conditions.  Therefore, there is insufficient basis to upgrade his discharge.

3.  He contends he suffered mental health issues as a result of his deployment to Iraq but Soldiers were discouraged by his 1SG from seeking assistance from mental health; however, he does not provide any evidence other than his assertion to support this contention.  In addition, the applicant's contentions could have/should have been raised in the court-martial/sentencing/appellate process.  

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)                                         AR20110003961





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ABCMR Record of Proceedings (cont)                                         AR20110003961



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