IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120020159 


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) to a general discharge and correction of item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he completed his first full term of service.

2.  He states:

* he was suffering from Post Traumatic Stress Disorder (PTSD)
* his DD Form 214 shows he did not complete his first full term of service
* this is an error because he reenlisted on 21 November 2003

3.  He provides a self-authored statement, DD Form 214, general court-martial proceedings, Observation Reports, DD Form 3340-R (Request for Reenlistment or Extension in the Regular Army (RA)), and DD Form 4789 (Statement of Entitlement to Selective Reenlistment Bonus).

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 applicant's 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 applicant's 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 U.S. Army Reserve under the Delayed Entry Program on 1 June 2001 and incurred an 8-year service obligation.  He enlisted in the RA on 8 June 2001 for a period of 3 years.

3.  On 20 November 2003, he submitted a request for reenlistment in the RA.  His DA Form 3340-R indicates his company commander certified he was fully qualified for reenlistment and approved the request on 20 November 2003.  

4.  He was discharged on 20 November 2003 for immediate reenlistment after completing 2 years, 5 months, and 12 days of his enlistment contract.

5.  He reenlisted on 21 November 2003 for a period of 6 years.

6.  General Court-Martial Order Number 36, Headquarters, 1st Armored Division, dated 6 November 2006, shows the applicant was convicted by a general court-martial of assault and breaking restriction on 18 July 2006.  He was sentenced to reduction to the rank of private/E-1, confinement for 12 months, and a BCD.  

7.  On 6 November 2006, the court-martial convening authority approved the sentence and except for that part of the sentence extending to a BCD, ordered it executed.  The applicant was credited with 8 days of confinement against the sentence to confinement and all pay and allowances were deferred, effective 21 July to 6 November 2006.

8.  On 28 December 2006, the U.S. Army Court of Criminal Appeals corrected General Court-Martial Order Number 36, dated 6 November 2006, by adding in the charge after the words "Finding:  Not Guilty" the words "but Guilty of the lesser included offense of assault with means or force likely to produce death or grievous bodily harm, in violation of Article 128 of the UCMJ."

9.  On 21 June 2007, the findings of guilty and the sentence were affirmed and the BCD was ordered executed.  

10.  On 17 August 2007, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial, other.  At the time of his discharge, he had completed a total of 5 years, 4 months, and 28 days active military service with 286 days of lost time.  
11.  Item 18 (Remarks) of his DD Form 214 shows, in part, the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE."

12.  His service record is void of evidence that indicates he was diagnosed with PTSD while on active duty.

13.  He provided an addendum to his application:

	a. describing the incident surrounding the altercation with a female.  

	b.  attesting to experiencing unusual behavior since he returned from Iraq.  He had no knowledge that he was suffering from PTSD.  He was angry all the time, having sleepless nights, feeling the pressure of someone after him, and that he did not want to be around people.  He's now getting help for PTSD, but only at a very low level because of his discharge.  

14.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 3-11 states 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 ordered duly executed.

	b.  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.

15.  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.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It states that item 18 is used for entries required by Headquarters, Department of the Army for which a separate block is not available and for completing entries that are too long for their blocks.  

17.  Paragraph 2-4 (Completing the DD Form 214) of Army Regulation 635-5 provides detailed instructions and source document(s) for completing each block of the DD Form 214.  The regulation states that the entry "SOLDIER (HAS) (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE" is a mandatory entry which assists the State in determining eligibility for unemployment compensation entitlement.  In pertinent part, it states that a Soldier should not be considered to have completed the first full term of active service if separation occurs before the end of the initial contracted period of service.  However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  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.

2.  Although the applicant contends his misconduct was due to PTSD, his service record is void of evidence indicating he was diagnosed with this mental condition prior to his discharge or that he raised his mental condition as a possible defense at the time.

3.  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 applicant's 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.  

4.  The evidence of record shows he enlisted in the RA on 8 June 2001 for a period of 3 years and reenlisted on 21 November 2003 for 6 years.  He was discharged on 17 August 2007.  Therefore, he completed his initial contracted period of service.

5.  In accordance with the governing regulation, the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" in item 18 of the applicant's DD Form 214 should be corrected to show the entry "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends the DD Form 214 of the individual concerned be corrected by deleting the entry "MEMBER HAS NOT COMPLETED FIRST FULL TERM OF SERVICE" from item 18 and replacing it with the entry "MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE."  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrade of his BCD to a general discharge.  



      _______ _   _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)                                         AR20120020159



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ABCMR Record of Proceedings (cont)                                         AR20120020159



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