PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           12 September 2000                  
	DOCKET NUMBER:   AR2000043941

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Anita L. McKim-Spilker		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Ms. Carol Jo Suiter		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that he be granted clemency in the form of a general, under honorable conditions discharge or honorable discharge.

3.  He states, in effect, that he was punished for his misconduct and that he does not believe the Army intended for him to suffer from the symptoms of Gulf War Syndrome (GWS) and Post-Traumatic Stress Disorder (PTSD) as further forms of punishment; that he currently suffers from physical and mental disorders yet he cannot obtain treatment from the Department of Veterans Affairs (DVA); that prior to his misconduct, he had honorable service to include service in Southwest Asia and Bosnia, deployment to Guantanamo Bay, Cuba, in support of the Haitian migrant camp operations, and to Florida in support of Hurricane Andrews relief operations; that at the time of his general court-martial (GCM), additional matters were submitted in mitigation, specifically his multiple mental diagnoses; that he was initially diagnosed with a major depressive disorder, generalized anxiety disorder, and PTSD; that as a part of the GCM proceedings the judge ordered a sanity board be conducted; that he was again evaluated psychiatrically and determined to be suffering from dysthymic disorder and a personality disorder (not otherwise specified); that during his psychiatric assessment it was noted that he had multiple problems and that he suffered from “increased loneliness and social isolation since his participation in Operation Desert Shield, witnessing gruesome scenes of dead bodies of Iraquis on three to four occasions…marked insomnia, anxiety, decreased concentration;” that his current medical problems include memory loss, sleeplessness, fatigue, depression, and jumpiness; that he is unable to provide a current civilian doctor’s report to describe his condition because he does not have the money to see a doctor; that his BCD has prohibited him from obtaining a livable wage to support his wife and three children; that he served his confinement and that he was a model prisoner; and, that he desires an upgrade of his discharge to obtain needed medical and psychiatric care from the DVA for the disabilities which are associated with his service in Southwest Asia. 

4.  The applicant’s official record shows he enlisted on 12 September 1990 as a private first class/E-3 in the Regular Army (RA) for the U.S. Army Training of Choice Enlistment Option (95B-Military Police).  His initial enlistment was for a period of 5 years.  There is no record of where the applicant attended basic combat training.

5.  The applicant completed advanced individual training (AIT) in military occupational specialty 95B at Fort McClellan, Alabama, and was thereafter assigned to Fort Bragg, North Carolina.

6.  On 1 April 1992, while at Fort Bragg, he was promoted to specialist/E-4.

7.  He earned and received the following awards and decorations:  Army Achievement Medal; Good Conduct Medal; National Defense Service Medal; Southwest Asia Service Medal with 2 Bronze Service Stars; Army Service Ribbon; Overseas Ribbon; Kuwait Liberation Medal; and, the Air Assault Badge.

8.  On 1 December 1992, at Fort Bragg he was honorably discharged for the purpose of immediate reenlistment.  On 2 December 1992 he reenlisted in the RA for a period of 4 years.  At the time of his reenlistment he held the rank of specialist/E-4 and had completed 2 years, 2 months, and 20 days of prior active honorable service.  

9.  On 6 March 1993 he departed Fort Bragg in casual status en route to Germany.

10.  On 31 July 1995 the applicant extended his reenlistment for a period of 7 months to meet the remaining service requirement to return for assignment to the contiguous United States (CONUS).  Thereafter, he departed Germany in casual status en route to Fort Bragg. 

11.  On 11 December 1996, at Fort Bragg, he was convicted by a GCM for wrongfully transporting a loaded privately-owned weapon and two specifications of wrongful distribution of marijuana.  He was sentenced to a reduction to private/E1, confinement at hard labor for six months, a bad conduct discharge (BCD), and a forfeiture of all pay and allowances. 

12.  In preparing the applicant’s case for trial, the evidence of record shows that the applicant’s defense counsel requested a sanity board.  The following facts were provided to medical personnel by the defense counsel:  that the applicant’s misconduct was in shocking contrast with his exemplary military record; that the applicant had been deployed constantly during his military career; that upon completion of AIT he was deployed to Desert Shield/Storm; after his return from the desert to Guantanamo Bay, Cuba, for migrant relief operations; to Miami, Florida, for Hurricane Andrew relief operations, and, finally to Bosnia; and, that he had serious concerns regarding the applicant’s mental status both at the time of the occurrence of the misconduct, and for his capacity to assist in the preparation of his defense.  

13.  Subsequent to defense counsel’s request, a mental responsibility inquiry was ordered.  The applicant was examined by a clinical psychiatrist who diagnosed him with a dysthymic disorder.  (Dysthymic disorder is described in the Diagnostic and Statistical Manual of Mental Disorders (4th Edition) as a chronically depressed mood that occurs for most the day more days than not for at least 2 years.  During periods of depressed mood, at least two of the following additional symptoms are present: poor appetite or overeating, insomnia or hypersomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions, and feelings of hopelessness.)  The examiner indicated that the applicant endorsed sadness, anxiety, insomnia, lack of concentration, with increased loneliness and social isolation since his return from Desert Storm.   

14.  Based on the psychiatrist’s report the applicant was found competent to stand trial by the sanity board.  The sanity board also concluded that he was not so mentally impaired by his disorder that he could not formulate the necessary criminal intent.  He was to be given follow-on medical and psychiatric treatment at the confinement facility.

15.  The applicant served his confinement at Camp Lejeune, North Carolina, and was released from confinement to military authorities on 7 May 1997.  He was then placed on involuntary excess leave pending appellate review of his GCM.

16.  On 27 August 1997 the Army Court of Criminal Appeals, on consideration of the issues specified by the applicant, denied the applicant’s appeal and affirmed the findings of guilty and the sentence.

17.  On 17 June 1998 he was discharged under the provisions of AR 635-200, chapter 3, with a bad conduct discharge.  At the time of his discharge he had completed 7 years, 4 months, and 9 days of active military service.  

18.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that a soldier will be given a punitive discharge (BCD or DD) 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.

CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 

2.  The Board has considered the applicant’s contentions regarding his mental and physical disabilities, however, the applicant was found to be mentally competent to stand trial.

3.  The overall quality of the applicant’s last period of service does not warrant an upgrade of the discharge.  However, his prior term of service, which included 
2 years, 2 months, and 20 days of honorable service, should be considered a complete and unconditional separation.

4.  Although the applicant was not eligible for a complete and unconditional separation on 1 December 1992, the honorable discharge issued to him for the purpose of immediate reenlistment terminated a period covering more than
2 years of honorable service.

5.  In consideration of the above findings and conclusions, and in recognition of his more than 2 years of good service, it would be unjust to consider his honorable discharge of 1 December 1992 as other than a complete and unconditional separation from the military service.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected to show that the individual concerned was eligible for a complete and unconditional separation from the military service at the time of his honorable discharge on 1 December 1992.  

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__CMF__  __FE ___  _CJS ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043941	
SUFFIX		
RECON		
DATE BOARDED	20000912	
TYPE OF DISCHARGE	BD	
DATE OF DISCHARGE	19980617	
DISCHARGE AUTHORITY		
DISCHARGE REASON	BAD CONDUCT DISCHARGE	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1. 	144.9106.0000	
2. 	144.9220.0000	
3.		
4.		
5.		
6.