IN THE CASE OF:	  

		BOARD DATE:	  7 June 2012

		DOCKET NUMBER:  AR20110023153 


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 his bad conduct discharge to a general discharge.

2.  The applicant states:

* he was convicted of involuntary manslaughter due to the accidental killing of his best friend
* he was told to use the buddy system to clear weapons after he returned from combat, but there were no clearing barrels
* his weapon discharged and he shot his best friend in the chest
* he was having a lot of trouble at the time – nightmares, stress, anxiety, panic attacks, and inability to concentrate
* he feels the court-martial did not consider his post-traumatic stress disorder (PTSD)
* like many other combat veterans, he was having problems thinking, remembering, and concentrating
* he joined the Army National Guard (ARNG) to support his country and did not realize the impact that combat would have on his mind and body
* he cannot get a job or receive any veterans' benefits as a result of his discharge and he feels it is unfair for a combat veteran

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 8 April 2005 and 16 June 2009
* acknowledgement of his post-trial rights
* Standard Form 600 (Chronological Record of Medical Care)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ARNG on 13 July 2004 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).

2.  He was ordered to active duty in support of Operation Iraqi Freedom on 8 April 2005 and subsequently served in Kuwait/Iraq from 22 January 2006 to 24 February 2007.

3.  On 26 February 2007 pursuant to his pleas, he was convicted by a general court-martial of:

* one specification of negligent homicide by shooting another Soldier in the chest with a pistol
* one specification of dereliction of duty by negligently failing to follow arming procedures

4.  The court sentenced him to reduction to the lowest enlisted grade, forfeiture of all pay and allowances, confinement for 15 months, and a bad conduct discharge.

5.  On 24 May 2007, the convening authority approved a lesser sentence of confinement for 6 months, reduction to the lowest enlisted grade, and a bad conduct discharge and, except for the bad conduct discharge, he ordered the sentence executed.

6.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

7.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 160, dated 26 June 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

8.  He was discharged accordingly on 16 June 2009.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. 
He completed 3 years, 10 months, and 9 days of creditable military service with lost time from 25 February 2007 to 23 June 2007.  This form further shows his character of service as bad conduct.

9.  He submits a Chronological Record of Medical Care, dated 3 April 2007, which shows he reported having PTSD.

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 (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.

11.  Army Regulation 635-200 sets forth the basic policy governing 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of negligent homicide and dereliction of duty.  He was sentenced to a reduction in rank, forfeiture of pay, confinement, and a bad conduct discharge.  Trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted.  Presumably, the court considered his wartime service when determining his sentence.

2.  Any redress by the ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR 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 were therefore appropriate.  As a result, clemency is not warranted in this case.

3.  Based on his record of indiscipline, the applicant's 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.


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 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)                                         AR20110023153



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ABCMR Record of Proceedings (cont)                                         AR20110023153



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