IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130008047 


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 that his general, under honorable conditions discharge be upgraded to honorable.

2.  The applicant states he has always wanted to be a Soldier and do his part to help our nation.  He processed his enlistment paperwork on 11 September 2001 and knew from that day he would probably go to war.  That did not stop him from becoming a Soldier.  He enlisted and worked hard to always do a good job.  His first duty station was Fort Stewart, Georgia.  From there he went to Kuwait.  While in Kuwait, he called his wife who told him she was cheating on him and that he should forget about her.  She also told him that his grandmother had died.  The pain and stress of hearing this sad news made it very hard for him.  He swallowed hard and with the help of his superiors tried to concentrate on the job at hand.  This was war and he knew he had to focus to deliver so as not to get fellow Soldiers and friends killed.

3.  He managed to get through many close calls in Iraq.  When he was finally returning from Iraq, he called his wife to find out about his son.  She answered that she loved him and wanted to forget the past and that she was sorry.  He had too much to think about at the time and told her he would have to think about it.  He finally decided to try and make everything work.  He decided against getting a divorce.  But, then he started having nightmares.  Because he was preparing for nose surgery, he did not tell anyone about the dreams.  His wife told him he was having conversations with her that he did not remember.  He did not talk to her because he could not remember.  When his wife said she needed a vacation and wanted to go to Puerto Rico to visit her family, he said okay and paid cash for the hotel and anything else she needed.

4.  Now he was alone in the house and still having nightmares.  He got a really bad rash all over his body.  The doctors told him it was an allergic reaction and gave him some medicine.  He heard rumors that his wife was cheating on him so he called her.  She said people liked to invent stories.  But she had cheated before and this sounded like the same person as before.  He told her to come back home or he would divorce her.  She agreed to come back.  He then got news about a friend who was killed in Iraq.  It hit him.  He was sad and confused.  He was trying to work through his situation but was not in good shape.  He was about to blow.  He went to Miami to pick up his wife.  They stayed there for the weekend.  He did not tell her anything about what he was going through even though he knew she was interested.  She was getting phone calls that she did not answer when he was around.  He had so much on his mind that he could not figure out the nightmares or understand why he could not remember talking to his wife.  He was overly aware of his surroundings and extremely nervous every day.  He drank his medication early at night but could not remember if he drank the one for his rash, so he drank another.

5.  Then it happened.  He still does not remember what happened.  It is just a blank.  He was acting weird in his company early one day at work.  He was going to the bathroom frequently.  He was mad, nervous, and shaky.  When he was in the United States, people thought of him as a hero.  When he came to Puerto Rico, people thought of Soldiers in Iraq as being killers.  It was really hard for him to accept that most people felt that way.  It has been more than 7 years and he still has nightmares.  He got diagnosed with post-traumatic stress disorder (PSTD).  He also has three bad discs and arthritis in his back.  He argues that he always did his best and did his job.  He put his life on the line for his country.  He wants a better life for his family and wants to feel accomplished.  He wants a chance for a good job and to study to better himself and to become a professional so his family can be proud.

6.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Prisoner Progress Report, dated 1 December 2005
* Certificate of No Penal Record, dated 6 December 2007
* letter of support from the Mayor, Rincon, Puerto Rico, dated 30 March 2009
* letter of support from a friend, dated 27 July 2011
* letter of support from a friend, dated 26 August 2011
* letter of support from a friend, dated 12 September 2011
* letter of support from a friend, dated 13 October 2011
* letter of support from a friend, undated

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.  On 21 September 2001, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 92F (Petroleum Supply Specialist).  He was subsequently advanced to specialist, pay grade E-4.

3.  On 25 February 2005, the applicant was convicted by a general court-martial of committing an assault on his wife by stabbing her in the back with a knife and by placing his hands around the neck and choking with the intent to inflict grievous bodily harm.  His sentence consisted of a reprimand, reduction to private, pay grade E-1, forfeiture of all pay and allowances, and confinement for 12 months.

4.  On 17 October 2005, the sentence was approved and ordered to be executed.

5.  On 25 November 2005, the commander notified the applicant of his intention to separate him under the provisions of Army Regulation 635-200, chapter 14 for the commission of a serious offense, for which he was convicted by a general court-martial and sentenced as indicated in the preceding paragraphs.

6.  On 5 December 2005, the applicant consulted with counsel concerning his rights.  He elected to make a statement in his own behalf and to be represented by counsel.  He stated that he was still a good Soldier in his heart and felt sad because he did not get to go with his unit on the previous deployment.  While in the Charleston Naval Brig he learned a great deal from the excellent programs he attended.  He was confident he could return to the Army as a reformed and motivated Soldier.  He asked to be retained on active duty and to be able to continue to serve his country.  In the alternative, he asked for an honorable characterization of service so that he would retain his Montgomery GI Bill education benefit after discharge.

7.  On 8 December 2005, at a mental status evaluation, the applicant's behavior was found to be normal.  He was fully alert and oriented and displayed an anxious mood.  His thinking was clear, his thought content normal and his memory good.  There was no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military channels.  The applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate intelligently in any proceedings that may involve him.

8.  On 9 January 2006, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct due to the commission of a serious offense.  The commander cited the applicant's general court-martial conviction for assault as the basis for this recommendation.  He recommended that the applicant receive a general, under honorable conditions characterization of service and that rehabilitative reassignments be waived.

9.  On 25 January 2006, the appropriate authority waived the rehabilitative requirements and approved the recommendation for discharge.  The applicant was not to be transferred to the U.S. Army Reserve and was to receive a general discharge under honorable conditions.

10.  Under the Uniform Code of Military Justice (UCMJ), the maximum punishment allowed for intentionally inflicting grievous bodily harm, other than with a loaded firearm, is a dishonorable discharge and confinement for 5 years.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include commission of a serious offense that could result in a punitive discharge.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  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.

12.  The six letters of support provided by the applicant essentially state he is an honest and responsible person who has always been an outstanding civic participant.  A warrant officer in the United States Army states that the applicant must have another opportunity to serve his nation because he has always been a "go-to" Soldier who sacrifices his personal time to assist fellow Soldiers.  A former noncommissioned officer states that it was the applicant who gets the credit for putting him on the right path in the Army and helping to make him a Special Forces Green Beret.  A former supervisor of the applicant stated that the applicant was always willing to learn and to be proficient in his duties.  He further stated that he believes everyone deserves a second chance to prove themselves to society.  The applicant is an outstanding man who fought in Iraq and put his life on the line for his country.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable because he was always a good Soldier.  He implies that he was suffering from PTSD and that this was the basis for his misconduct.

2.  The evidence of record shows the applicant was convicted by a general court-martial of intentionally inflicting grievous bodily harm to his wife by stabbing her in the back and choking her with his hands.  This criminal act could have resulted in his receiving a punitive discharge and 5 years in confinement.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  The applicant underwent a mental status evaluation.  He showed no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition through military channels.  The applicant was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to participate intelligently in any proceedings that may involve him.

6.  The applicant has not provided any documentary evidence showing he was diagnosed with having PTSD, or that such condition was the proximate cause of his criminal behavior that led to his court-martial and subsequent administrative separation.

7.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

8.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20130008047



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ABCMR Record of Proceedings (cont)                                         AR20130008047



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