IN THE CASE OF:	  

		BOARD DATE:	  13 December 2012

		DOCKET NUMBER:  AR20120005547


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 upgrade of his bad conduct discharge (BCD) to a general discharge (GD).

2.  The applicant states:

	a.  the military court-martial failed to recognize he was suffering from post- traumatic stress disorder (PTSD) and depression, drinking excessively to cope with his post-combat feelings, and that he too was a victim of the incident that led to the receipt of his BCD;

   b.  he was initially charged with "intoxication manslaughter" following an accident that took the lives of two people;
   
   c.  he is guilty of driving under the influence but not of causing the accident;
   
   d.  he was told the driver of the other vehicle had a blood alcohol content significantly higher than his and it was determined the other person failed to yield the right away, ultimately contributing to the accident;
   
   e.  after deliberating over his case for nearly 8 months, the District Attorney was reluctant to assign blame to him and transferred jurisdiction to the Army in August 2006;
   
   f.  the military court-martial determined he was not the proximate cause of the accident but culpably negligent because the others involved were deceased;
   g.  he summarizes his otherwise impressive military record indicating his accomplishments, promotions, favorable ratings, and combat service including his resulting psychological problems; his post-service accomplishments, educational training and success;
   
   h.  he is unable to obtain gainful employment without with an upgrade of his BCD; and
   
   i.  based on his military record, Department of Veterans Affairs rating, and post-service achievements, consideration should be given to upgrade his BCD to a GD.

3.  The applicant provides:

* Self-authored statement
* District Attorney Case Information Sheet
* three character reference statements
* Texas Peace Officer's Accident Report
* two Accident Supplement reports
* Supplemental Report
* VA Rating Decision
* Two DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)
* Two DA Forms 7096 (ASAP (Army Substance Abuse Program) Outpatient Aftercare Plan)

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records shows he enlisted in the Regular Army on 29 March 2001.  He was trained in and served in military occupational specialty 14J (Air Defense Command, Control, Communications, Computers, and Intelligence Tactical Operations Center Enhanced Operator/Maintainer)

2.  The applicant was promoted to the rank of staff sergeant (SSG/-E-6) on 1 July 2005, and this was the highest rank he attained while serving on active duty.

3.  Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, published General Court-Martial (GCM) Order Number 30, dated 24 September 2007.  It shows, pursuant to his pleas, the applicant was found guilty of violating Articles 111, 119, and 134 of the Uniform Code of Military Justice (UCMJ) as indicated:

   a.  Article 111 – operating a vehicle while the alcohol concentration in his blood was 0.08 grams or greater than the legal limit in a reckless manner by driving 25 miles per hour over the posted speed limit, and/or failing to slow down for a red light, and did thereby cause said vehicle to injure Private First Class (PFC) W____ and Specialist (SPC) Q_____ on 10 December 2005.
   
   b.  Article 119 – (2 specifications) by culpable negligence, unlawfully kill PFC W____ and unlawfully kill SPC Q_____, both on 10 December 2005.
   
   c.  Article 134 – between 1 – 30 August 2006, did create and/or present, without authority, false military permanent change of station orders to his local apartment manager, reflecting his reassignment to Korea to induce termination of his lease.
   
4.  The resulting approved modified sentence was a BCD, confinement for thirty-six months, and reduction to private (PVT/E-1).

5.  GCM Order Number 315, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, dated 30 October 2008, directed that Article 71c of the UCMJ having been complied with, the BCD be executed.  On 13 March 2009, the applicant was discharged accordingly.

6.  The DD Form 214 issued to the applicant confirms he was discharged under the provisions of chapter 3, Army Regulation 635-200, due to court-martial.  He completed 5 years, 10 months, and 2 days of net active service and he accrued lost time during the period 1 May 2007 – 13 March 2009.

7.  The applicant provides character reference statements from individuals who support his request for an upgrade of his discharge and state his actions could only be the direct result of what happened to him in Bagdad and his resulting PTSD conduct.  All of the statements contain favorable character comments that included the applicant is a valuable assistant, resourceful, competent, professional, reliable, dependable, and encouraging.

8.  He provides a VA Disability Rating Decision which shows he was granted a 20 percent service-connected disability rating based on his conditions of tinnitus, PTSD, and degenerative disc disease of the cervical spine.

9.  The applicant provides two DA Forms 7095 which show he was referred to the ASAP after driving while intoxicated.  It also shows his rehabilitation status was good and he exhibited a positive attitude in all aspects of the program.


10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the BCD portion of the sentence is ordered duly executed.

11.  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.  

12.  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 to an GD.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.  His contentions are issues that could have been raised in the trial and appellate process.

3.  The applicant expresses remorse and his post-service conduct, as described in his application, is admirable.  However, this does not sufficiently mitigate the serious criminal offenses that resulted in his court-martial conviction.  Therefore, given the gravity of the offense that resulted in his GCM conviction and BCD, his overall record of service and post-service conduct are not sufficiently meritorious to support clemency in this case.

4.  Any redress by this BCMR 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 absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20120005547





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ABCMR Record of Proceedings (cont)                                         AR20120005547



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