IN THE CASE OF:	  

		BOARD DATE:  15 January 2013

		DOCKET NUMBER:  AR20120011102 


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 (BCD). 

2.  He states his BCD was unjust because he had psychological issues at the time and he was not referred for a psychological evaluation or medical care for his behavior.  He adds he suffered from post-traumatic stress disorder (PTSD), depression, and anxiety.  He maintains he had a substance abuse problem and his problem was related to his military service.  He states he was court-martialed in Iraq because he was drinking on duty.  He offers he was self-medicating with alcohol because he was scared and stressed out.  He believes his disabilities are all service connected.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), Department of Veterans Affairs (VA) Disability Claim File, and a letter from the Social Security Administration.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 31 July 2002.  He served in Iraq, but his dates of service are not listed in his available file.

2.  On 8 September 2004, he was convicted by a special court-martial of violating a lawful general order by wrongfully consuming alcohol while in Iraq and being found drunk while posted as a sentinel.  The court sentenced him to a reduction to the pay grade of E-1, confinement for 90 days, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on an unknown date.  The BCD was ordered executed on 11 May 2007.

3.  His DD Form 214 shows he was discharged with a BCD on 23 November 2009 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  He had completed 7 years, 1 month, and 8 days of active service with the period from 8 September to 22 November 2004 listed as lost time.

4.  The applicant provided his VA Disability Claim File that contains the following documents:

	a.  An undated letter from a Medical Corps officer that appears to have been written during the time of the applicant's court-martial states the applicant's lack of self confidence and low motivation was exacerbated by depression.  During the latter part of high school and during his military career it led to him taking lower level jobs that he knew he would be successful at.  This individual believed the applicant may be salvaged for military service and the investment in him preserved if the following conditions were met:

* Commitment to ongoing treatment and medication compliant
* That his treatment has a significant impact on his mood and motivation
* Placement in a unit that is neutral or supportive of him
* He commits to total sobriety, not only in theater, but also after returning to the United States 

   b.  Several supporting statements from friends and family members.  The applicant's sister stated he was in need of appropriate help for alcoholism and PTSD.  She offered that the applicant completely changed due to his deployment to Iraq.  She said he gets really nervous when they are out and around a lot of people.  She opined that he was not the same person she grew up with.  The applicant's friend stated the applicant was a ticking time bomb; he is always on edge, mad, upset, and even paranoid at times.  Another friend stated the applicant was very exciting, out-going, and a happy individual before he joined the Army.  He further stated the applicant is an alcoholic and drinks daily.  

	c.  A DA Form 4465-R (Patient Intake/Screening Record), dated 31 March 2003, shows the applicant was screened for a drug and substance abuse program.  Section IV (Enrollment Decision), shows "Do Not Enroll" Refer for Alcohol/Drug Prevention Training. 

   d.  Numerous medical/health record documents show he was seen at the medical facility for a number of conditions to include stomach discomfort, chest pain, injury to the eye, low back pain, shaving profile, head injury, and ankle pain. He also provided a medical record form, dated 2 October 2004, which shows he checked the block "No History of Alcohol Abuse or Treatment."  
   
   e.  Certificate of Completion was awarded to the applicant for participating in and successfully completing the residential recovery program on 20 May 2010.
   
   f.  The District Court of Jonesboro, Craighead County, AR, Judgment and Disposition, shows on 10 March 2011, the applicant made a plea of Nolo Contendere (I do not wish to contend) to the charge of "Driving Under Suspension."

	g.  Letter from the Social Security Administration, dated 14 May 2012, shows he is receiving benefits for Guillian-Barre Syndrome and PTSD.

5.  The applicant's record does not contain a separation or a mental evaluation.  His record is also void of any evidence that shows he was diagnosed with PTSD while he was in the military.

6.  The Defense Finance and Accounting Service verified that the applicant received hostile fire/imminent danger pay and combat zone tax exclusion from 
19 March through 19 November 2004 for Kuwait.

7.  On 7 March 2010, he appealed to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 27 December 2010, the ADRB denied his request for a discharge upgrade stating the board determined that he was properly and equitably discharged.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or a BCD.  It 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 must be ordered duly executed.

9.  Army Regulation 635-200, 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.

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 as 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that his discharge should be upgraded because his indiscipline was based on PTSD which either resulted from or occurred during his military service.  

2.  The evidence of record shows the applicant was screened for a drug and substance abuse program on 31 March 2003, almost a year prior to his deployment to Kuwait/Iraq on 19 March 2004.  There is no evidence and he has not provided any evidence to show that PTSD caused his misconduct or that he was diagnosed with PTSD while he was in the military.  The fact that he provides a letter from the Social Security Administration that shows he was diagnosed with Guillian-Barre Syndrome and PTSD, without medical evidence, it is not sufficient for granting clemency in this case.

3.  The evidence of record shows he was convicted by a special court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

4.  He was given a BCD pursuant to an approved sentence of a special court-martial.  All requirements of law and regulation were met and his rights were fully protected.

5.  Based on his overall record of indiscipline his 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 an honorable or 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.  Given his 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.

7.  In view of the foregoing, there is no basis for granting his 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)                                         AR20120011102



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ABCMR Record of Proceedings (cont)                                         AR20120011102



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