IN THE CASE OF:	  

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20110005218 


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 his bad conduct discharge (BCD) be upgraded to a general discharge.

2.  He states that the cause of his actions that led to his court-martial and subsequent BCD was brought about by his condition of Post Traumatic Stress Disorder (PTSD).  He explains that while in Iraq, he was exposed to mortar, rockets, and small arms fire and he participated in roving patrols and convoys during his 10-month tour.  He maintains that at the time of his court-martial in November 2006, for aggravated assault on a Soldier, he was unaware of his condition of PTSD.  He offers that since his discharge he was diagnosed by a civilian psychiatrist with PTSD and anxiety disorder.  He adds that he has been hospitalized several times as well as put on several different medications to treat his PTSD.

3.  He provides the following:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty).
* Statement from a medical doctor, dated 19 August 2010
* General Court-Martial Order Number 313, dated 30 October 2008

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 
8 September 2004.  
2.  On 7 May 2006, he was convicted by a general court-martial for the following offenses:

* Unlawfully striking a Soldier on the head with his arms or hands
* Committing assault on a Soldier by pointing a loaded firearm
* Being disrespectful in language and deportment toward a superior noncommissioned officer
* Failing to obey a lawful general order by wrongfully possessing and consuming alcohol

3.  On 7 May 2006, the court sentenced him to reduction to the grade of
E-1, a forfeiture of all pay and allowances, confinement for 15 months, and a BCD.  The convening authority approved so much of the sentence as provided for reduction to E-1, forfeiture of all pay and allowances, confinement for 4 months, and a BCD.  

4.  On 20 March 2009, he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) due to court-martial, other with a BCD.  He had completed 4 years, 1 month, and 24 days of total active service with lost time from 7 May 2006 to 25 September 2006.

5.  He provided a statement from a medical doctor from Behavioral Healthcare of Rappahannock-Rapidan, dated 19 August 2010, in which the doctor said he had diagnosed the applicant as having PTSD.  He further stated that the condition was caused by the applicant's military experience in Iraq. 

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

7.  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.


8.  Court-martial convictions stand as adjudged or as 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 argues, in effect, that his discharge should be upgraded because his indiscipline was based on suffering from PTSD which either resulted from or occurred during his tour in Iraq.  There is no evidence and he has not provided any evidence to show that PTSD caused his misconduct and/or that he sought counseling/medical treatment to correct his problems during his military service.  The fact that he provides a statement from a medical doctor that said he diagnosed the applicant with PTSD which was caused by his military experience in Iraq, without medical evidence, is not sufficient evidence for granting clemency in this case.

2.  The evidence of record shows he was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  He was given a BCD pursuant to an approved sentence of a general court-martial.  All requirements of law and regulation were met and his rights were fully protected.

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  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.  Given his undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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

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)                                         AR20110005218





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ABCMR Record of Proceedings (cont)                                         AR20110005218



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