IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20120022917 


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, through civilian counsel, requests that the Board exercise clemency and upgrade his bad conduct discharge (BCD).  He further requests a personal appearance before the Board.

2.  The applicant defers to counsel. 

3.  The applicant provides a packet rendered by his civilian counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Board exercise clemency and upgrade the applicant's BCD.

2.  Counsel states:

   a.  During a 15-month deployment to Iraq, the applicant experienced severe emotional trauma by witnessing the death and injury of many Soldiers, including two personal friends.  Upon returning home, he witnessed a fellow Soldier take his own life.  As a result of these experiences, the applicant began to exhibit signs of post-traumatic stress disorder (PTSD).

   b.  One night his girlfriend asked him to babysit her 9-month-old daughter in spite of the fact that he had been drinking and had little experience with young children.  When he was unable to calm the baby, he became frustrated and struck the baby.  Following the incident, the applicant was sentenced to confinement for 6 months, reduced to the rank/grade of private (PVT)/E-1, and he received a BCD.
   
   c.  After being released a month early for good behavior, the applicant returned to his hometown and with the support of his family, friends, and the church, he received treatment for his alcoholism and anger issues.  He was officially diagnosed with PTSD and began treatment for that, as well. 
   
   d.  The applicant has made great strides in his rehabilitation process and he was forgiven by his former girlfriend for striking her baby.  He married his high school sweetheart and is now the father of two young daughters; however, his BCD is preventing him from qualifying for better employment opportunities.
   
   e.  He acknowledges he made a terrible mistake, but he has taken responsibility for his actions and received professional help.  He would like his BCD upgraded so he may better provide for his family and become a fully productive member of society.  The applicant seeks clemency and asks the Board to upgrade his BCD to a general discharge so he will be eligible for employment opportunities currently unavailable to him.

3.  Counsel provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 014-0243
* applicant's personal statement
* a letter
* DA Form 638 (Recommendation for Award)
* Post-Deployment Health Assessment
* a memorandum
* several letters and statements of support
* several pages of post-discharge medical records
* DA Form 4430 (Department of the Army Report of Result of Trial)
* General Court-Martial Order Number 37
* Certificate of Marriage
* Two Certificates of Birth

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 13 May 2003.  He completed training and was awarded military occupational specialty 19K (M1 Armor Crewman).  Records show he subsequently served in Iraq for the period 
20 January 2005 through 5 February 2006.

3.  On 18 April and 30 May 2007, the applicant pled guilty at a general court-martial and he was found guilty of unlawfully striking a child under age 16 with his hands on or about 6 February 2007.  The applicant pled not guilty of unlawfully striking a child under age 16, on the face with a belt.  This specification was dismissed by the military judge pursuant to the provisions of a pre-trial agreement.  

4.  The court sentenced him to confinement for 6 months, reduction to the rank/grade of PVT/E-1, and the issuance of a BCD.

5.  On 14 November 2007, the convening authority approved the sentence and except for that part of the sentence extending to a BCD, ordered the sentence executed.  

6.  His record contains General Court-Martial Order Number 231, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, dated 28 August 2008, which states in the general court-martial case of the applicant, the sentence to reduction to the grade of PV1/E1, confinement for 6 months, and a BCD, adjudged on 30 May 2007, as promulgated in General Court-Martial Order Number 37, dated 14 November 2007, as corrected by U.S. Army Court of Criminal Appeals Notice of Court-Martial Order Correction, dated 11 January 2008, has been finally affirmed.  That portion of the sentence extending to confinement has been served.  Article 71c having been complied with, the BCD will be executed. 

7.  Accordingly, he was discharged from the Army on 30 January 2009.  The 
DD Form 214 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 5 years, 3 months, and 27 days of creditable military service of which the period from     30 May to 20 October 2007 was lost time and 21 October 2007 to 30 January 2009 was excess leave. 

8.  Counsel provides:

   a.  A letter from the medical doctor who evaluated and assessed the applicant indicates he suffers from PTSD resulting from his military experience.  This doctor has treated the applicant for the past 2 years with some improvement; however, his symptoms and related disability are likely to be long term and only partially responsive to intensive treatment.

   b.  Numerous letters of support from family, friends, physicians, and other professionals who attest to the applicant’s character, post-service conduct,  PTSD, and the progress he continues to make towards becoming a productive member of society.

   c.  Three pages of post-service medical records which show the applicant was assessed with and received treatment for PTSD, drug and alcohol dependency, low back pain, and nicotine addiction. 
   
   d.  A petition for clemency from the applicant’s trial defense counsel to the commanding general, dated 14 November 2007.  The applicant requested relief in the form of suspension of 1 month of the adjudged confinement and disapproval of 1 month in confinement once final action was taken.  He further requested disapproval of the adjudged BCD.   

9.  Army Regulation 635-200:

	a.  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.

	b.  also provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

10.  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.

11.  Army Regulation 15-185 (ABCMR) governs operations of the ABCMR.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested a personal appearance before the Board, there is sufficient evidence available for fair and impartial consideration of his case without such an appearance.

2.  The applicant was convicted by a general court-martial of striking a child under the age of 16 with his hands and he was sentenced to confinement, reduction in rank, and a BCD.  His trial by a general court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  Presumably the court considered his war time service in Iraq when determining his sentence.

3.  The ABCMR is 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 therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  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.

ABCMR Record of Proceedings (cont)                                         AR20120022917



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022917



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1