BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20120022530 


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 (GD) and to have all references to his court-martial expunged.

2.  The applicant defers his statement to counsel.

3.  The applicant provides his evidence through his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board exercise its equitable powers to expunge the court-martial conviction from the applicant's military records and replace his BCD with a general discharge (GD).

2.  Counsel states the applicant wishes the Board to consider his Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (TBI), both deriving from his deployment to Iraq in 2005; their effect on his conduct while on active duty; the inaction of the applicant's command, which resulted in his lingering on active duty for 15 months instead of being administratively separated; and the defectiveness of the medical evaluation that cleared him for court-martial, when considering this request.  Counsel offers three principle arguments:

	a.  The regulatory guidance in effect at the time of the applicant's offenses required that administrative separation action be initiated upon the notification of the first and second positive urinalysis;

	b.  His command failed to treat the applicant's conditions diagnosed by both the Army and civilian physicians, decreasing his chance of rehabilitation; and

	c.  There is strong reason to suspect the judgment and opinion of the sanity board that determined the applicant was able to be court-martialed based on the tainted opinion of a neuropsychologist who admitted to falsifying diagnoses of other Soldiers, and who admitted to feeling pressured to changing diagnoses and downplaying symptoms of PTSD and TBI.

3.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Reenlistment documents, awards, training certificates, and certificates of achievement
* Confirmed Urinalysis Test Results memoranda, dated 5 January 2007 and 9 April 2007, with allied documents
* Discharge Summaries for the period 10 -24 August 2007
* Cedar Springs Behavioral Health System Discharge Summary, dated 
18 October 2007
* Cedar Springs Hospital Psychiatric Admission Assessment and Work Up, dated 24 October 2007
* Standard Form (SF) 600 (Health Record- Chronological Record of Medical Care), dated 11 March 2008
* SF 600, dated 18 March 2008
* Motion for Appropriate Relief, dated 16 April 2008
* Salon article, dated 8 April 2009
* National Public Radio (NPR) article, dated 4 December 2006
* Stars and Stripes article, published 15 November 2011
* Department of Veterans Affairs (VA), National Center for PTSD information sheet
* VA War Related Illness and Injury Study Center, TBI information sheet
* Evans Army Community Hospital Behavioral Health Department, Risks and Benefits 

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 Regular Army on 26 October 2004 and served in primary military occupational specialty 88M (Motor Transport Operator).  His record further shows he served in Iraq from 2 December 2005 to 31 October 2006.

3.  His record contains limited information in regard to the discharge and his medical records are not available for review.  All evidence considered was provided by the applicant unless otherwise noted.

4.  He tested positive for an illegal substance during a command-directed urinalysis test administered on:

* 12 December 2006, for tetrahydrocannabinol (THC), the active ingredient in marijuana
* 19 March 2007, for methylenedioxymethylamphetamine (MDMA) and THC

5.  On 5 January 2007 and 9 April 2007, the applicant's commander was notified that the applicant tested positive.  These memoranda advised his commander to:

* immediately report the positive result to the U.S. Army Criminal Investigation Command (CID) 
* initiate a flag
* refer the Soldier to the Army Substance Abuse Program (ASAP) Clinic for evaluation
* consider adverse action
* initiate separation action

6.  On 22 January 2007, he signed an Evans Army Community Hospital Behavioral Health Department, Risks and Benefits about Patients & Informed Consent in which he acknowledged the terms of his participation in ASAP.  The available record does not contain progress reports or recommendations from the ASAP counselor; therefore, it cannot be determined if he successfully completed the program.

7.  His Army Military Human Resource Record (AMHRR) contains a Department of the Army Report of Result of Trial which shows that while assigned to Headquarters and Headquarters Troop, 3rd Brigade Combat Team, 4th Infantry Division (Mechanized), Fort Carson, CO the applicant was tried by general 
court-martial on 10 March 2008 and 2 May 2008.  He was charged with the following Uniform Code of Military Justice (UCMJ) offenses:

Charge
Article UCMJ
Spec
Description of Offense (s)
Plea
Finding
I
92

Violate a lawful general regulation
G
G
II
112a
1
Wrongfully use marijuana
G
G


2
Wrongfully use 3, 4-methylenedioxymethamphetamine
G
G


3
Wrongfully distribute marijuana
G
G


4
Wrongfully distribute marijuana
G
G


5
Wrongfully distribute Lysergic Acid Diethylaminde
*
NA


6
Wrongfully use 3, 4-methylenedioxymethamphetamine
G
G


7
Possess 3, 4-methylenedioxymethamhetamine with intent to distribute
G
G


8
Wrongfully possess marijuana
G
G


9
Wrongfully use marijuana
G
G


10
Wrongfully use 3, 4-methylenedioxymethamphetamine
G
G
Addt'l Chg






134

Violation of Colorado Revised Statutes (CRS) 18-18-422, paragraph (1)(a)


* Specification 5 of Charge II was dismissed by the government prior to pleas.
G
G
8.  The court sentenced him to forfeiture of all pay and allowances, confinement for 40 months, and to be discharged with a BCD.

9.  General Court-Martial Order Number 35, dated 9 December 2008, issued Headquarters, Fort Carson, shows his sentence was adjudged on 2 May 2008.  This same order shows that the finding of guilty to specification 
7 (renumbered specification 6) of Charge II was disapproved and dismissed which resulted in the reduction of his confinement to 32 months.  This approved sentence, except for the bad conduct discharge, was ordered executed.

10.  On 30 July 2009, General Court-Martial Order Number 141, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK shows that the sentence to forfeiture of all pay and allowances, confinement for 
32 months, and BCD adjudged on 2 May 2008, as promulgated in General Court-Martial Order Number 35, dated 9 December 2008, as corrected by U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 
25 February 2009, was finally affirmed.  Further, that Article 71(c) having been complied with, the BCD was ordered executed.

11.  Accordingly, he was discharged from the Army on 22 December 2009.  His DD Form 214 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 his character of service as bad conduct and that he completed 3 years, 6 months, and 6 days of creditable military service.  The periods 18 to 21 April 2008 and 2 May 2008 to 
22 December 2009 were lost time.

12.  His counsel provided a legal brief in which counsel contends that the applicant:

* performed exemplarily on active duty prior to his deployment
* returned from Iraq a wounded Soldier suffering from PTSD and TBI
* was tormented by the image of watching a close friend die and the dissolution of his marriage
* foolishly chose to deal with his PTSD symptoms by using drugs to self medicate
* was targeted by a CID informant and asked to purchase drugs
* was court-martialed for his actions and pled guilty in May 2008 resulting in 32 months of confinement and a BCD

13.  His counsel provided a timeline of the applicant’s medical treatment and diagnoses as follows:

8 November 2006

The applicant completed a TBI Questionnaire at Fort Carson, CO.  He indicated that in September 2006, while performing the duties of a gunner on a Humvee, he was injured when an improvised explosive device (IED) exploded 20 feet from him.  His kevlar stayed on and he did not lose consciousness but did experience ringing in his ear.  The final assessment by the medical provider was TBI without symptoms.

13 November 2006
The applicant was diagnosed with TBI during a redeployment examination with a follow-up brain scan.  Brain scan was not completed because applicant was involuntarily committed to a local mental health facility.  The medical referral expired and no other physician would reorder the scan.  (No medical records provided to substantiate this statement)
12 December 2006
He tested positive for marijuana.
24 January 2007
He was diagnosed with PTSD while at a civilian psychiatric hospital with some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.  (No medical records provided to substantiate this statement).
30 January 2007
He was seen at Evans Army Community Hospital for his discharge follow-up and to create a treatment plan; he completed one group session on post-deployment issues and was told to follow up in three weeks at sick call.  (No medical records provided to substantiate this statement)
February 2007
His chronic/acute PTSD was inexplicably changed in his Evans Army Community Records to reflect a new diagnosis of adjustment disorder
19 March 2007
He tested positive for marijuana and ecstasy
April 2007
He was evaluated for insomnia during a Post-Deployment Health Reassessment (PDHRA)
10 April 2007 
During his PDHRA he was diagnosed with TBI symptoms but no follow-up was ever done.  Counsel contends this was the last medical assessment or interaction with a doctor the applicant received concerning his TBI until his court-martial almost ten months later
18 April 2007
He met with the doctor he originally saw on 30 January 2007.  (No medical records provided to substantiate this statement).
July 2007 

His investigation of the events that led to his court-martial initiated.
26 July 2007
A paragraph 14-12c, serious misconduct, separation physical conducted; physician noted in his medical records that his official Army diagnosis was changed from PTSD, given in January 2007, to adjustment disorder in February 2007 but the applicant still presented PTSD and required further evaluation.

27 July 2007


A physician indicated a more comprehensive mental health evaluation was needed; therefore, the applicant was not cleared for administrative separation.  No mention was made of the applicant's PTSD diagnosis and treatment at the Pike's Pike facility.
28 July 2007

He was again admitted to Pike’s Peak facility for suicide watch.  (No medical records provided to substantiate this statement)
10 August 2007

The applicant was medicated and transferred to the Colorado Veteran’s Affairs Medical Center (VAMC) where he stayed for two weeks.  The PTSD treatment team indicated a concern that the applicant may have exhibited symptoms in order to avoid court-martial; however, the treatment team believed that the patient was not malingering.  It was believed that the applicant exhibited significant PTSD symptoms and that he used marijuana daily in order to assuage the anxiety.  Applicant was returned to his unit. (No medical records provided to substantiate this statement)
24 August 2007
He was discharged from VAMC and seen by a doctor at Evans Army Community Hospital who noted the applicant was doing better. (Partial discharge summary provided/No medical records provided to substantiate he was seen at Evans Hospital the same day)
8 September 2007
The applicant received his first comprehensive PTSD evaluation at Evans Army Community Hospital; he was diagnosed with chronic PTSD, cannabis dependence, and psychoactive substance dependence combination of drugs.  He was given a treatment plan which included regular visits to a psychiatrist, enrollment in a substance abuse program at the Pike's Peak facility, and group PTSD therapy.  He also indicated a desire to enroll in a PTSD/substance abuse program.  He attended group therapy twice before he was readmitted to Pike’s Peak facility on suicide watch in October 2007.  It did not appear the applicant had any significant individual meetings with behavioral health or the substance abuse group.  (No medical records provided to substantiate this statement)
October 2007
He was transferred to Cedar Springs Hospital for follow up care.


After his hospitalization, the applicant was seen about a dozen times in group and individual psychological treatments until his court-martial in May of 2008.  These meetings were never with a consistent treating psychologist but rotated between three different providers.  (Medical records are not available to substantiate this statement).

11 March 2008
Dr. DM, a neuropsychologist at Evans Army Community Hospital, reviewed the applicant's test results on personality/psychological written exams and one neurological written test.  The physician’s opinion was that the applicant was exaggerating his symptoms.  While Dr DM mentions that there did appear to be some impairment of the brain, he suggested that these findings be married up to a SPECT scan of the brain's physical condition at a later date and again emphasized that the applicant appeared to be exaggerating.  No mention was made of the psychological testing that was done at other facilities or the opinions of other medical professionals.  No indication was made in the records that a "malingering test" was given to the applicant during these examinations.

14 March 2008
A SPECT scan was conducted of the applicant's brain by Dr. S and he noted that there was a physical indication of TBI in the brain areas that control social aspects and impulse control.  Dr. S, reading this SPECT scan, incorrectly says that "However, since the injury has occurred less than 9 months ago.  The specificity/positive predictive values are relatively low.  A repeat scan approximately 12 months from the date of injury could be considered to provide a good positive predictive value."  The radiologist incorrectly believed that the applicant's TBI was less than nine months old, when in it was in fact approximately a year and a half old.  Because the applicant's injury was so old, the scan has good "predictive value."  (No medical records provided to substantiate this statement)
18 March 2008
Dr. O, the forensic psychiatrist for the sanity board, reviewed Dr. MN's opinion given on 11 March and used it to confirm his initial opinion that the applicant could appreciate the nature and quality of his conduct and that his TBI was of no effect and his PTSD symptoms were mild (if not exaggerated.)  There is no indication that Dr. O reviewed Dr S's SPECT scan results from 14 March 2008.  (Sanity Board Evaluation not provided and not in available record)
14.  Counsel concluded that it was apparent from the applicant's medical record, that during the 18 months following his return from Iraq the applicant did not receive any significant intervention from the Army regarding two conditions that were diagnosed within two months of his return to the states:  TBI and PTSD.  His TBI was never comprehensively evaluated, nor was he given treatment for this condition.  His PTSD symptoms were identified early on, and he was hospitalized off-post for significant emergency psychological situations, but he was never given consistent follow-up treatment for PTSD-related issues ranging from suicidal ideations to cannabis dependence, both of which were diagnosed as related to his PTSD.  A year later, his symptoms of TBI and PTSD were still significantly affecting his ability to function.  While everyone can agree that the applicant made extremely poor decisions by using drugs, his decision-making process was certainly influenced by acute and significant PTSD symptoms that drove him to threaten suicide, and impaired impulse control due to TBI that, while identified, was never treated in a consistent and professional manner.  His counsel further argued:

	a.  The applicant's command failed to follow the regulation and provide support.  Following the applicant's first positive urinalysis an administrative separation proceeding should have been initiated per Army Regulation 600-85 (Army Substance Abuse Program).  His command specifically failed to begin the required separation proceeding, resulting in a CID investigation that never should have been necessary.

	b.  Irregularities at Fort Carson related to medical treatment.  His counsel notes that an investigative report by the NPR revealed Soldiers in similar situations to the applicant's at the same time were being denied treatment for PTSD and pushed unceremoniously out the door after committing misconduct related to their PTSD.

15.  The applicant provided a sworn statement in which he acknowledged that he pled guilty to charges and accepted responsibility for using marijuana and ecstasy.  

16.  He contends that:

	a.  He returned from Iraq a different person after he witnessed his good friend bleed to death when a chain broke and severed his throat.  When he returned home he was unable to sleep.  He was unable to sleep and was afraid and anxious.  His wife also left shortly after his return and he later found out that she was pregnant with another man's baby.  He was at a bad point in his life and contemplated suicide.  He was hospitalized off-post a few times because he could not function.  He was diagnosed with PTSD and TBI.  The doctors kept him in the hospital for a few days and then sent him back to the unit and the barracks, but he continued to have the same problems and feelings.  He started to use marijuana and ecstasy to make his brain slow down, to allow him to concentrate, sleep, and be able to eat.  

	b.  After he tested positive for drugs his commander and first sergeant did not want him in the unit.  They told all the other Soldiers that they should not talk to him because he was a dirt bag.  They announced at an award ceremony in front of the other Soldiers that he did not deserve the deployment award.  Around this time he had to have stomach surgery and when he returned the situation got worse.  He sought treatment locally; however, they would provide him a week's supply of medication but it would take a month or more to get another appointment due to understaffing.  He befriended a fellow Soldier who seemed to share similar issues.  He needed a friend so he went out of his way to help him.  After knowing him for two weeks he purchased drugs for the fellow Soldier because he threatened to harm himself if he did not get them.  The friend turned out to be a CID informant and he was eventually court-martialed for his behavior.

	c.  Since his discharge things have been difficult.  He had severe issues with PTSD.  He accumulated large medical bills related to his PTSD and treatment for his stomach.  He was not the perfect Soldier but he understands and takes responsibility for his actions.  An upgrade of his BCD will give him an opportunity to recover.

17.  Additional documents provided include:

	a.  A sworn statement from the applicant's mother in which she contends as a child the applicant had learning difficulties which caused him to struggle in school; however, he received his GED from the Youth Challenge Program at Fort Gordon in Augusta, GA.  He worked several jobs before enlisting in the Army and being deployed to Iraq.  She stated that the applicant called her from Iraq in tears about having watched his good friend and fellow Soldier bleed to death in front of him.  Later when he returned from Iraq he was a broken man and did not want visitors.  She visited him at the Pike's Peak Mental Health Center where he was being treated for depression.  After he failed a drug test he was ostracized by his unit and commanders and eventually he was court-martial and returned home.  He continued to suffer from PTSD symptoms which included not sleeping or eating for days, sitting in the closet crying for hours, hitting his head against the floor, and carrying a weapon to feel safe.  She believes that the applicant served honorably.  He made bad decisions but so did his chain of command when they went after him instead of trying to assist him.  She wants him to have a chance to restore his self-respect and get back on his feet.

	b.  A Salon news article, dated 8 April 2009, titled "I am under a lot of pressure to not diagnose PTSD."  In this article a Soldier assigned to Fort Carson, CO secretly records a psychologist, Dr. MN, stating "I will tell you something confidentially that I would have to deny if it were ever public.  Not only myself, but all the clinicians up here are being pressured to not diagnose PTSD and diagnose anxiety disorder NOS [instead]."  Dr. MN also stated that he received pressure not to properly diagnose TBI.  The Salon article points out that the Senate Armed Services Committee declined to conduct an investigation; however, an informal investigation, conducted by a unit of the Army's Medical Command found potential "systemic" problems that could influence diagnoses, but determined that no one in the Army's Medical Command was to blame.  Further, a report dated “28 July,” specifically found that no Fort Carson or Medical Command staff "attempted to coerce or otherwise influence diagnoses." The article stated that the results directly contradict Dr. MN’s statements on the tape and in his interview with Salon.

	c.  An NPR article, dated 4 December 2006, titled "Soldiers Say Army Ignores, Punishes Mental Anguish."  This article recounts instances where Soldiers at Fort Carson alleged that they did not receive adequate mental-health care.  The article suggests there was evidence that officials were kicking Soldiers with PTSD out of the Army rather than addressing their mental health issues. 

	d.  A Stars and Stripes article, dated 15 November 2011, titled " Critics:  Fort Carson policy targeted troubled, wounded Soldiers."  This article presents examples of Soldiers assigned to Fort Carson who appear to have been discharged for misconduct rather than allowed to be administratively discharged through medical channels as a matter of an unofficial policy to allow leaders to get wounded, troubled Soldiers out of the Army quickly.

	e.  A VA article which discusses PTSD and Substance Abuse in Veterans.

	f.  Various awards and training certificates, to include an Honor Graduate Certificate of Achievement for Basic Combat Training Class and an Army Commendation Medal for his participation in Operation Iraqi Freedom.

	g.  A motion for appropriate relief in which the applicant's military counsel requested that he be granted 180 days credit against any sentence to confinement.

18.  Army Regulation 600-85 states that commanders must initiate administrative separation within 30 calendar days of receipt of a positive drug test report or, if the case requires Medical Review Officer (MRO) review, within 30 calendar days of receipt of the MRO-verified positive drug test report.  In cases where the chain of command has referred the matter to a trial by court-martial, administrative separation proceedings will be delayed until the completion of the court-martial process.  The commander may initiate action under the UCMJ and start administrative separation processing simultaneously.  Regardless of the action taken, the Soldier must be referred to ASAP.

19.  Further, discharge for misconduct under the appropriate enlisted or officer regulation will be initiated and processed to the separation authority for all Soldiers involved in illegal trafficking, distribution, possession, use, or sale of illegal drugs.  Soldiers will also be considered for disciplinary action under the UCMJ, consistent with chapter 6, of Army Regulation 600-85 and Rule for Courts-Martial 306, Manual for Courts-Martial.  Initiation of administrative separation proceedings is not required in those instances where charges have been referred to a court-martial empowered to adjudge a punitive discharge, or when drug use is discovered through self-referral.

20.  Chapter 9 of Army Regulation 635-200 outlines the procedures for discharging Soldiers for alcohol or other drug abuse rehabilitation failure.  Discharge is based upon alcohol or other drug abuse such as illegal, wrongful, or improper use of any controlled substance, alcohol, or other drug when—

	a.  The Soldier is enrolled in ASAP.

	b.  The commander determines that further rehabilitation efforts are not practical, rendering the Soldier a rehabilitation failure. 

	c.  When not precluded by the limited use policy, offenses involving alcohol or drugs may properly be the basis for discharge proceedings under chapter 14. Soldiers processed for separation under other provisions of this regulation who also are, or become, subject to separation under this chapter and whose proceedings on other grounds ultimately result in their retention in the Service, will be considered for separation
under this chapter.

	d.  When the commander determines that a Soldier who has never been enrolled in ASAP lacks the potential for further useful service, the Soldier will be screened per Army Regulation 600–85.  If found non-dependent, the Soldier will not be rehabilitated but will be considered for separation under other appropriate provisions of this regulation.
21.  Nothing in the paragraph 9 prevents separation of a Soldier who has been referred to such a program under any other provision of this regulation.  Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures.

22.  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.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his BCD to a GD and to have all references to his court-martial expunged.

2.  The fact that the applicant suffered from mental health issues is not in question; however the medical treatment timeline and partial medical records provided by his counsel are insufficient evidence to show that the Army failed to provide timely and adequate medical treatment to the applicant or to show that he was not properly diagnosed.

3.  The record does not show that the applicant had TBI and is somewhat equivocal regarding a diagnosis of PTSD.  Neuropsych testing for TBI was negative (due to prevarication) and brain imaging was inconclusive.  The applicant's lack of history of any loss of consciousness rules out any significant brain trauma.  Although diagnosed with PTSD in January 2007, this was later changed to Adjustment Disorder in February 2007.  He was hospitalized with depression and suicidal ideation due to impending divorce and court-martial.  Later he endorsed symptoms of PTSD and at the time of his sanity board he was considered to have mild PTSD.

4.  Although he was discharged in December 2009, the most recent medical record submitted for review is dated March 2008.  At the time he did not have a diagnosis of TBI but was diagnosed with "Post Concussive Syndrome:  primarily psychogenic by most indicators" and "mild PTSD."  These diagnoses were known to and considered by the sanity board prior to his court-martial and were not considered by competent medical authority (forensic psychiatrist) to be mitigating factors in the applicant's misconduct.

5.  The applicant and his counsel further contend that the Army should have processed the applicant for administrative separation after he tested positive for drug use, but instead they initiated a CID investigation which led to his BCD.  There is insufficient evidence in regard to the applicant's participation in the ASAP; however, there is no mandatory requirement to administratively separate a Soldier who has committed a serious offense such as possession and distribution of illegal drugs.  There is a requirement to initiate separation, and lacking evidence to the contrary it must be presumed that his chain of command did so.

6.  All the evidence provided by the applicant was carefully considered to include his character-reference letter and the news articles.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge.  Each case is considered on its own merits and there is no clear and convincing evidence that the applicant's mental health conditions were intentionally misdiagnosed in order to expeditiously process him for separation.  The record shows that the applicant tested positive for illegal drugs on two occasions and was charged with, pled guilty to, and found guilty of several UCMJ offenses related to the possession and distribution of illegal drugs.  The applicant's 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.

7.  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 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.

8.  In view of the foregoing, there is no basis for granting the applicant's request.







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.



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ABCMR Record of Proceedings (cont)                                         AR20120022530



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