DOCKET NUMBER:  AR20120021180 


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. 

2.  The applicant states he has to live with not being able to support his family to the best of his abilities due to his bad conduct discharge.  Employers look at his records and don't want to risk hiring him.  He has to take jobs that don't pay well at all.  Nevertheless, he has been enrolled in college and wants to make a better life for his family.  

	a.  He feels his family and he have suffered long enough for his mistake that happened so long ago.  He wants a chance to give his wife and daughter the life they deserve because right now, his family has to go without a lot and it pains him not to be able to afford things such as his daughter's field trip money to the zoo.  The week of her trip she was so disappointed because everybody went except her.  He wants this Board to lift this dark cloud from over his family.  

	b.  At the time he was dealing with thoughts of suicide emotional stress due to his former spouse cheating on him.  When the incident happened, he wasn't himself and his unit did not take actions after his cry for help.  He was eating a bunch of pills to kill himself and they sent him to the field training exercise instead sending him for a mental evaluation.  Additionally, he was harassed by another Soldier in the field and he (the applicant) pulled a boot knife out and that is the short version of what happened to him.

3.  The applicant provides:

* Letter from Northwest Indian College
* Letter from the Department of Social and Health Services
* Psychiatric information pertaining to a line of duty investigation

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.  Having had prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army for 3 years on 8 July 1999 and he held military occupational specialty 88M (Motor Transport Operator).  

3.  He was awarded or authorized the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  He was assigned to the 299th Quartermaster Company, Fort Hood, TX.  The highest rank/grade he attained was private/E-2. 

5.  On 17 February 2000, he was admitted to Darnall Army Community Hospital at Fort Hood, TX.  His DA Form 2173 (Statement of Medical Examination and Duty Status) indicates he had ingested 8-10 pills after fighting with his spouse.  He told his supervisor he wanted to die. 

6.  An appointed investigating officer (IO) subsequently investigated the incident and on 10 April 2000, the IO determined the suicidal gesture did not occur in line of duty and the injury was due to own misconduct.  

7.  On 22 August 2000, he departed his unit in an absent without leave (AWOL) status.  However, he returned to military control on 13 September 2000. 

8.  On 14 October 2000, he again departed his unit in an AWOL status.  He returned to military control on 24 November 2000. 
9.  On 5 December 2000, the applicant underwent a mental status evaluation.  The military psychiatrist indicated the applicant was distraught over the possible breakup of his marriage after a heated argument with his wife.  He was also unhappy with his status with the Army and was not performing well in his unit.  The military psychiatrist opined the applicant was mentally unsound with regard to only this incident and did not necessarily indicate he suffered from a mental disease or disorder which required disposition through medical channels. 

10.  On 7 December 2000, the appointing officer disapproved the finding of "Not in Line of Duty - Due to Own Misconduct" and on 13 December 2000, the approving authority determined the applicant's injury was "In Line of Duty."  

11.  On 14 March 2001, consistent with his guilty pleas, the applicant was convicted by a general court-martial of two specifications of AWOL from 22 August to 13 September 2000 and from 14 October to 24 November 2000 and one specification of committing an assault upon another Soldier in the field.  The court sentenced him to a reprimand, forfeiture of all pay and allowances, confinement for 130 days, and a bad conduct discharge. 

12.  On 22 May 2001, the convening authority approved the sentence, and except for the bad conduct discharge, ordered the sentence executed.  

13.  On 22 May 2001, the applicant was reprimanded, pursuant to his sentence by court-martial, for assaulting another Soldier with a knife during a field training exercise.  The assault occurred in an open bay in front of approximately 20 other Soldiers.  One of the Soldiers subdued the applicant and took the knife away.  After, he was brought to where the commander was located.  He (the applicant) fled away with his field gear.  

14.  On 18 October 2001, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 

15.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 65, dated 20 February 2003, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

16.  Accordingly, he was discharged from the Army on 28 November 2003.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result 

of court-martial, other.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 10 months, and 26 days of creditable military service with lost time from 22 August to 13 September 2000 and from 14 October to 24 November 2000. 

17.  He submitted the following medical documents:

	a.  A letter, dated 6 October 2012, from Northwest Indian College related to an application for financial aid. 

	b.  Letter, dated 15 October 2012, from the Department of Social and Health Services - Washington State authorizing him certain state benefits. 

18.  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.

19.  Army Regulation 635-200 governs the separation of enlisted personnel.  

	a.  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.

	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.  

	c.  Paragraph 3-10 provides 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial of being AWOL and of assault.  The court sentenced him to a reprimand, forfeiture of pay and allowances, confinement, and a bad conduct discharge.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  Presumably the court considered his mental status when determining his sentence.

2.  The ABCMR does not reexamine issues of guilt or innocence under a court-martial conviction.  This is the court-martial convening authority and the appellate review function and cannot be upset by the ABCMR.  Any redress by this ABCMR 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 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.

3.  The military psychiatrist found him mentally unsound with regard to only the suicidal attempt incident and did not necessarily indicate he suffered from a mental disease or disorder which required disposition through medical channels. Although the military psychiatrist indicated the applicant was distraught over the possible breakup of his marriage after a heated argument with his wife as well as his unhappiness with his Army service and substandard performance in the unit, this did not mean that being AWOL and/or assaulting others with a deadly weapon was the answer to his issues.  He could have referred himself to mental health services.  His AWOL and assault appear to be matters of choice.  Such issues were or should have been raised during the court-martial or the subsequent review.  That would have been the proper forum to raise any issues.

4.  His post-service achievements are noted.  His family situation is also noted.  However, his court-martial conviction and resulting bad conduct discharge are a natural consequence of his own actions. 

5.  Based on his overall record of indiscipline, the applicant's 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 either a general or an honorable discharge.


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)                                         AR20120021180



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ABCMR Record of Proceedings (cont)                                         AR20120021180



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