BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110015268 


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 an upgrade of the bad conduct discharge (BCD).

2.  The applicant states:

* he got back from Iraq and found himself under a lot of stress
* he did not know how to cope with all the stress and he made some bad decisions
* he served his country with respect and honor and believes that an upgrade of his discharge should be warranted

3.  The applicant provides:

* an undated self-authored statement
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 239-0197, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 27 August 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 18 March 2003, in pay grade E-1.  He completed training as an indirect fire infantryman and he was advanced through the ranks to pay grade E-4.  He reenlisted in the RA on 28 January 2006.

2.  Special Court-Martial Order Number 17, issued by Headquarters, Fort Campbell, KY, dated 21 September 2006, shows that pursuant to his plea, on 9 June 2006, he was convicted of feigning suicidal and homicidal ideations from 23 February to 26 April 2006 for the purpose of avoiding deployment to Iraq.  He was sentenced to:

* reduction to pay grade E-1
* confinement for 60 days
* a BCD

3.  The convening authority approved only so much of the sentence as provided for confinement for 43 days and a BCD.  Except for that portion pertaining to his BCD, the convening authority ordered the sentence executed.

4.  Special Court-Martial Order Number 78, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 27 April 2007, noting that the sentence had been finally affirmed, ordered the BCD executed.

5.  On 31 August 2007, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial with a BCD. He completed 4 years, 3 months, and 27 days of creditable active service this period with issuance of a BCD.

6.  His DD Form 214 shows he served in an imminent danger pay area; however, the country and exact dates are unknown.  Item 13 (Decorations, Medal, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows, among other awards, the:

* Army Commendation Medal
* Army Good Conduct Medal
* Combat Infantryman Badge
* Global War on Terrorism Expeditionary Medal
* Meritorious Unit Commendation

7.  On 2 December 2009, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 1 October 2010, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharge and denied the applicant’s petition for an upgrade of his discharge.

8.  The applicant submits an undated statement contending:

* he did make some mistakes; but before he did he received many awards through two combat tours
* 2 weeks before he was court-martialed he received the Army Good Conduct Medal
* his wife was cheating on him while he was deployed
* he went to his unit and received inadequate help
* he served his country proudly and honorably until he was court-martialed
* he had planned on making the Army a lifetime career
* the type of discharge he received is holding him back from many opportunities
* he has embarrassed himself, his family, and the Army

9.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

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

	a.  Chapter 3 provides 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 duly executed.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  

2.  There is no evidence in the available record showing that he sought assistance through his chain of command for any personal problems he may have been having.

3.  His record shows he was convicted of feigning suicidal and homicidal ideations for the purpose of avoiding deployment to Iraq.  He was discharged with a BCD as a result of a duly-reviewed and affirmed special court-martial conviction and he has provided no evidence to show the type of discharge he received was erroneous or unjust.

4.  Based on his record of service, he did not serve honorably.  The BCD he received appropriately characterizes his service and is not overly severe considering the nature of his offense.

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 the applicant's 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 an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110015268



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ABCMR Record of Proceedings (cont)                                         AR20110015268



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