IN THE CASE OF:	  

		BOARD DATE:  27 June 2013

		DOCKET NUMBER:  AR20120021131 


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 reconsideration of an earlier request to upgrade his bad conduct discharge.

2.  The applicant states:

	a.  it is noteworthy that his bad conduct discharge came as a result of one incident after more than 11 years of decorated, honorable service by a loyal Soldier, service which was undertaken while juggling much more than the grueling missions which comprised his duties in the Army.

	b.  can justice truly be served when 11 years of proven dedication and documented excellence is wiped out by one negative incident which was caused and exacerbated by the Post-Traumatic Stress Disorder (PTSD) which the 
11 years of service brought on?

	c.  he recognizes that at the time of his court-martial a judgment was rendered in good faith and in compliance with all applicable regulations in effect.  He is not seeking to overturn any properly-adjudicated decision.  The interim, however, has demonstrated that PTSD is a valid professional diagnosis and it is reasonable to suggest that his thinking and judgment were not always reliable during his time of service.    

	d.  it is worth considering that throughout his military service and beyond, he has had no prior incidents of drug use or any criminal history whatsoever.  He is a good citizen and well liked in his community.  He has always represented the best that America has to offer and has only one blemish on his otherwise outstanding record.  This blemish resulted from his illness (PTSD) and was not uncommon considering his deployment history.  Evidence supports the fact that he was under the influence of his illness at the time of his uncharacteristically reckless behavior.  

	e.  he is currently being treated regularly for his PTSD and is dutifully adhering to the recommendations of his treatment team.  The negative wording on his DD Form 214 (Certificate of Release or Discharge from Active Duty) is distracting to potential employers and gainful employment is a goal of his current treatment.

3.  The applicant provides no additional documentary evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110024539, on 7 June 2012.

2.  The applicant's arguments are new evidence that will be considered by the Board.

3.  He enlisted in the Regular Army on 10 November 1983 for a period of 3 years.  He completed his training and was awarded military occupational specialty 91B (medical specialist).  He remained on active duty through continuous reenlistments and he was promoted to sergeant on 1 July 1990.  He deployed to Saudi Arabia from 15 September 1990 to 4 April 1991.  

4.  On 25 April 1994, he was convicted by a special court-martial of three specifications of using cocaine.  He was sentenced to be confined for 100 days, a reduction to E-1, and to be discharged from the service with a bad conduct discharge.  On 24 June 1994, the convening authority approved the sentence.

5.  On 24 August 1994, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

6.  On 13 March 1995, the convening authority ordered the applicant's bad conduct discharge duly executed.


7.  He was discharged with a bad conduct discharge on 3 May 1995 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial.  He had served a total of 11 years, 3 months, and 4 days of creditable active service with 81 days of lost time.

8.  There is no evidence of record which shows he was diagnosed with PTSD prior to his discharge.

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 3-7a, 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.

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 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 contends his one negative incident (special court-martial conviction) in 11 years of service was caused and exacerbated by PTSD.  However, there is no evidence of record and he provided no evidence which shows he was diagnosed with PTSD prior to his discharge or that any mental illness caused his misconduct.

2.  He points out he has had no subsequent incidents of drug use or any criminal history whatsoever and he is a good citizen and well liked in his community.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  He claims his bad conduct discharge is distracting to potential employers and gainful employment is a goal of his current treatment.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

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 contention that his bad conduct discharge came as a result of one incident after more than 11 years of decorated, honorable service by a loyal Soldier was noted.  However, his record of service during his last enlistment included one special court-martial conviction for using cocaine and 81 days of lost time.  He was a sergeant.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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.  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 to amend the decision of the ABCMR set forth in Docket Number AR20110024539, dated 7 June 2012.




      _______ _  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)                                         AR20120021131





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ABCMR Record of Proceedings (cont)                                         AR20120021131



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