IN THE CASE OF:
BOARD DATE: 10 July 2012
DOCKET NUMBER: AR20120000959
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 be upgraded to a general discharge.
2. The applicant states:
a. he believes he deserves a general discharge because he spent 14 months in Iraq with his unit defending his country and he risked his life every day to ensure the safety of his comrades.
b. he knows he got into a lot of trouble towards the end of his enlistment but he regrets it and pays the consequences for it every day.
c. if his discharge is upgraded the first thing he will do is enter a Post Traumatic Stress Disorder (PTSD) rehabilitation program at a Department of Veterans Affairs (DVA) hospital. He suffers from PTSD as a result of his tours of duty in Iraq. He would also like to use his GI Bill benefits. A discharge upgrade will also open up job opportunities.
3. The applicant provides:
* Character reference letter
* Newspaper article pertaining to his service in Iraq
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 30 January 2003 for a period of 3 years. He served as an armor crewman in Iraq from 11 January 2004 to
11 January 2005.
3. On 7 July 2005, he was convicted by a special court-martial of conspiring to commit larceny and stealing electronic equipment in Iraq. He was sentenced to be confined for 30 days, to forfeit $822.00 pay per month for 2 months, and to be reduced to E-1. On 5 April 2006, the convening authority approved the sentence.
4. On 17 January 2006, he was convicted by a general court-martial of two specifications of being absent without leave (AWOL) (from 7 September 2005 to 26 September 2005 and from 28 October 2005 to 3 November 2005), attempting to escape from custody, using marijuana and cocaine, larceny, and two specifications of breaking restriction. He was sentenced to forfeit all pay and allowances, to be confined for 22 months, and to be discharged from the service with a bad conduct discharge. On 1 June 2006, the convening authority approved only so much of the sentence as provided for confinement for 366 days and a bad conduct discharge.
5. The decision of the U.S. Army Court of Criminal Appeals is not available. However, on 16 March 2007, the convening authority ordered the applicant's bad conduct discharge to be executed, indicating the sentence was affirmed.
6. He was discharged with a bad conduct discharge on 10 August 2007 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial. He had served a total of 3 years, 9 months, and 13 days of creditable active service with 268 days of lost time.
7. He provided a character reference letter from his father who states:
* He hopes his son's discharge will be upgraded so he can get help with his PTSD
* When his son made the decision to join the Army in 2003 he did so knowing he would most likely be going to Iraq
* His family was very proud of him
* He went to Iraq in January 2004 and came back in March 2005 a different person
* He is unable to hold a job because of his self destructive behavior
* He thinks this behavior is due to PTSD
* 2004 was a year of intense fighting for the troops and his son saw his share of it
* He received a medal for bravery
* He is a good person
8. He also provided a newspaper article which states he was commended for his valorous actions while serving in Iraq.
9. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 3 states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
10. 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.
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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant wants his discharge upgraded so he can obtain medical and educational benefits. However, a discharge is not changed for the purpose of obtaining DVA benefits.
2. He also wants better job opportunities. Discharges are not upgraded for the purpose of enhancing employment opportunities.
3. The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.
4. Trial by 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 characterizes the misconduct for which he was convicted.
5. His record of service included one special court-martial conviction for misconduct while in Iraq, one general court-martial conviction, and 268 days of lost time. As a result, his record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
6. 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. The type of discharge directed and the reasons were therefore appropriate. As a result, clemency is not warranted in this case.
7. In view of the foregoing, there is no 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.
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