IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006758 


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, upgrade of his bad conduct discharge (BCD).

2.  He states during his second deployment to Iraq he suffered through several breakdowns.  He continues that a private doctor diagnosed him with post-traumatic stress disorder (PTSD), because of his condition he used drugs to get by on a daily basis in the military.

3.  He indicates that he provides PTSD medical evidence; however, it is not available in support of his case.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He enlisted in the Regular Army on 23 January 2002.  He successfully completed basic and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewmember).

3.  He served in Kuwait/Iraq from 29 April 2003 through 27 March 2004 and 1 February 2005 through 21 January 2006.

4.  While stationed at Fort Riley, KS, he was tried by a general court-martial (GCM) on 7 August 2006.  Pursuant to his pleas of guilty, he was convicted of one specification each of: 

* wrongfully possessing marijuana with intent to distribute 
* wrongfully importing marijuana into the customs territory of the United States and wrongfully using marijuana
* wrongfully using methamphetamines

5.  The approved court-martial sentenced was reduction to E-1, forfeiture of all pay and allowances, confinement for 24 months, and a bad conduct discharge.

6.  The affirmation of the U.S. Army Court of Criminal Appeals (ACCA) is not available.  Department of the Army, Headquarters, U.S. Army Field Artillery Center and Fort Sill General Court-Martial Order Number 148, dated 21 June 2007, shows that the ACCA affirmed the finding of guilty and the sentence.  

7.  On 10 August 2007, he was discharged from the Army with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, other.  He completed 4 years, 6 months, and 28 days of creditable active service with 355 days of time lost due to confinement.

8.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7c provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be used for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial.

11.  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 the applicant suffered from PTSD and that PTSD was the reason for his court-martial.  However, there is no evidence that shows PTSD or that any mental disorder was the cause of his problems while serving in the military or excused his criminal acts.  Furthermore, there is no evidence that the applicant sought assistance for the illness prior to his court-martial.  The applicant had ample opportunity to address the issue during the course of his court-martial.  Therefore, there is an insufficient basis to support this argument.

2.  The evidence of record confirms that his trial by court-martial was warranted by the gravity of the offense for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change the severity of the sentence imposed if clemency is determined to be appropriate.

4.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that his service was not sufficiently meritorious or mitigating to warrant the relief requested.

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)                                         AR20110006758





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ABCMR Record of Proceedings (cont)                                         AR20110006758



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