BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120001952 


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 discharge.

2.  The applicant states he should not have been treated as he was.

   a.  His treatment and the following factors affected his performance:

* He suffered a traumatic head injury during an assault in 1991
* In 2004, shortly after he reenlisted in the U.S. Army Reserve his unit was mobilized and he was attached to a unit that deployed to Iraq
* The chain of command in the new unit discriminated against Soldiers who were not originally from that unit
* After he deployed to Iraq he was sick with various illnesses, but the chain of command would not afford him proper medical treatment
* His step-daughter ran away from home (twice) and his chain of command did not give him the support he needed to resolve his family problems
* He had rehabilitation potential, if he been treated right and given the opportunity to resolve his problems and get well
* His chain of command did not understand the meaning of "quarters," which is a medical term – they misused that procedure 

b.  He cites specific lines from the record of trial to support his argument.



3.  The applicant provides, in support of his application, medical records, excerpts from the record of trial, a letter from a female Soldier who served in the new unit with the applicant, a letter of support from a medical doctor, and medical literature about head injuries.

CONSIDERATION OF EVIDENCE:

1.  The applicant joined the Army National Guard in October 1978; however, in November 1984, he was released and transferred to the U.S. Army Reserve (USAR) with a general characterization of service, due to continuous and willful absences.  He was discharged from the USAR on 29 August 1985, and in October 1997 he enlisted in the USAR for 6 years.  

2.  The available evidence shows during the applicant's enlistment processing in 2004:

   a.  He denied being arrested or having been in jail.
   
   b.  He denied using, abusing, possessing, distributing or selling of any illegal drugs, or other mind-altering substances.
   
   c.  The Chicago Police Department declined to answer the recruiter's request for a police records check, based on The Privacy Act.
 
3.  Federal Bureau of Investigation (FBI) records show in:
   
   a.  August 1986, he was charged with the unlawful use of a credit card and the disposition was court supervision.
   
   b.  August 1991, he was charged with possession of cannabis, March 1996 with criminal damage to property, and in April 1999 with possession of a controlled substance.  The dispositions of these charges are unknown.

4.  His USAR unit was activated and the DD Form 2807-1 (Report of Medical History) which the applicant completed in conjunction with an October 2004, in-take, medical examination, shows he denied any history of a head injury, period of unconsciousness, concussion, and illegal drug use or abuse.

5.  The applicant was immediately reassigned to another USAR unit and he was immediately deployed to Iraq.  He was there from 27 October 2004 until 19 July 2005.

6.  On 26 February 2005, the applicant committed several instances of assault on a commissioned officer and on noncommissioned officers by pointing a loaded firearm, swinging, striking, kicking and cursing.  At a general court-martial, he pled guilty and he was found guilty and sentenced.  The approved action by the convening authority was modified by the Army Court of Criminal Appeals and then set aside by the U. S. Court of Criminal Appeals, who ordered a "new review and action."

7.  During this review several of the specifications were found to be "unreasonably multiplicious for sentencing purposes."  The final approved sentence consisted of reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for 34 months, and a bad conduct discharge.  The sentence to confinement was considered served.

8.  The review hearing convening authority's action was finally affirmed, on 10 September 2009.  The provisions of Article 71(c) having been complied with, the sentence of a BCD was ordered duly executed.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a BCD on 9 December 2009.  He had completed 5 years, 1 month, and 13 days of creditable active service of which 843 days were excess leave.

10.  The documents the applicant submitted with his application were available for the sentencing phase of his court-martial action and included:

   a.  Medical records (which he has labeled "Biometrics) which show between 11 February and 28 February 2005 the applicant had a cold and/or flu and respiratory problems for which he sought and received medical treatment.

	b.  A two-page mental health description from the Commander, U.S. Military Hospital, Kuwait, which states the applicant:

       (1)  has never been in jail;
    
       (2)  was assaulted 3 years ago; he received a closed head injury and loss of consciousness;
   
       (3)  appears to be suffering from stress related to family and occupational problems exacerbated by the effects of a closed head injury and the narcotic effects of several prescription medications;
   
   
       (4)  had been ill several weeks and was taking several medications known to have significant side effects; and

       (5)  believed the unit's leadership was prejudiced against him because he was cross-leveled into the unit and also due to racism; and
   
       (6)  was dealing with significant family issues because his 13-year old step-daughter ra n away from home and was living on the streets.

   c.  Medical literature on the ramifications of head injuries.

d.  Comments and record of trial excerpts about the discrimination against 
both non-white Soldiers and those who were transferred into the unit by the cross-leveling project.

e.  An unsigned, undated letter of support addressing these two types of 
discrimination from another Soldier who felt she had also encountered these issues. 

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 his BCD should be upgraded.  He had problems controlling his emotions because of illness, drug interactions, emotional stress, discrimination, and a prior head injury.  His chain of command did not understand the meaning of the term "quarters," and they did not help him resolve his personal problems.

2.  There are serious contradictions between the behavioral and medical histories he reported to the mental health department, that which the applicant reported during his in-take physical, and that reflected in FBI records.  

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.

4.  All of the applicant's current contentions and supporting information appear to have been considered before he came to this Board and it is still not convincing enough to warrant the requested relief.

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 brutal nature of the applicant's offenses, his undistinguished record, and the absence of any mitigating factors, the type of discharge directed was appropriate.  Clemency is not warranted in this case.

6.  The available evidence is insufficient to demonstrate that he was discriminated against or that his chain of command denied him medical treatment or support in handling his personal problems.  

7.  There is no basis for granting the applicant's request.
 
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)                                         AR20120001952



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ABCMR Record of Proceedings (cont)                                         AR20120001952



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