IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150009827 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150009827 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. IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150009827 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 clemency and an upgrade of his bad conduct discharge. 2. The applicant states: * he feels he was a good Soldier and served his country well * he fell on some hard times and did something stupid which he has regretted with all his heart * he was hurt while serving in Iraq on both of his tours, but continued to press on, not wanting to leave his unit at anytime * the Army didn't want to work with him after he got in trouble to help him in any way to overcome his wrong-doing * no form of punishment other than trial by court-martial was offered to him, which made him feel bad * he still feels the effects of this action today and would have loved to have finished his career as his father and other relatives did * he is unable to receive Department of Veterans Affairs (VA) benefits due to his bad conduct discharge * some days he still feels the effects of dealing with the war and being kicked out of the Army * he enlisted in the U.S. Army Reserve when he was a junior in high school and went into the Regular Army once he graduated, thus he knew nothing but the Army for those 7 years * he is a little older now and regrets the entire situation, takes full responsibility for his actions, and wishes he had been given a second chance to make it right as that was the only blemish on his record * he fully acknowledges his wrongful acts with deep regret and recognizes his actions went completely against how he was raised by his parents and what he learned in the Army * when faced with a difficult financial situation, he took advantage of his position and the trust of others which went against every moral and ethical code he learned throughout his life * an upgrade of his discharge would enable him to get some help from the VA and enable him to get a better job without this incident hanging over his head * a statement he made during his court-martial hearing will hopefully explain why he did the things he did * statements from personnel under whom he served while in the Army are also among the court-martial proceedings and vouch for his character 3. The applicant provides: * DA Form 638 (Recommendation for Award) * memorandum for record certifying deployment dates in support of Operation Iraqi Freedom, dated 10 February 2004 * request for early redeployment from theater, dated 10 February 2004 * Individual redeployment authorization, dated 10 February 2004 * Honorable Discharge Certificate, dated 1 November 2005 * Enlisted Record Brief, dated 30 March 2008 * DD Form 458 (Charge Sheet), dated 10 July 2008 * Record of Trial, dated 18 July 2008 * Headquarters, U.S. Army Armor Center, General Court-Martial Order Number 79, dated 7 May 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Mental Health Evaluation/Diagnosis, dated 23 August 2010 * letter from the National Personnel Records Center to the applicant, dated 28 August 2014 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 18 June 2002. 3. A Charge Sheet, dated 10 July 2008, shows he was charged with the theft of 29 laptop computers, the property of the U.S. Army, between 13 February 2008 and 3 April 2008. He was also charged with the attempted theft of 15 laptop computers, the property of the U.S. Army, on 3 April 2008. 4. Fort Campbell Installation Court-Martial Convening Order Number 3, dated 5 August 2008, convened a court-martial before which the applicant appeared at Fort Campbell, KY, on 18 September 2008. He was charged with, plead guilty to, and found guilty of the theft of 29 laptop computers and the attempted theft of 15 laptop computers, all the property of the U.S. Army. 5. Admitted to the court-martial proceedings were an unsworn statement provided by the applicant and five written accounts of witness testimony that would have been made by a major, sergeant first class, captain, special agent, and a master sergeant had they been called to testify. All witness testimony came from individuals under whom the applicant served with the exception of the special agent. 6. The applicant's testimony and written statement detail his early family life and military career to include two deployments to Iraq, one in 2003 where he served as a gunner and one in 2005 where he served as a supply sergeant. He also explained his reason for the theft was to overcome the financial difficulty he faced in providing for his family which included his wife who is legally blind and unable to work and his unborn child. 7. The witness statements, all from individuals under whom he served, attested to his outstanding duty performance in combat, reliability, willingness to volunteer to do whatever is necessary to accomplish the mission, skill as a supply sergeant, and ability to be rehabilitated. The special agent's statement shows the applicant was fully cooperative in the investigation into his misdeeds. 8. On 18 September 2008, he was sentenced to reduction to the rank/grade of private/E-1, confinement for 4 months, payment of a $7,250 fine, and discharge from the service with a bad conduct discharge. 9. Headquarters, U.S. Army Armor Center, General Court-Martial Order Number 79, dated 7 May 2009, shows the sentence, having been affirmed, was ordered duly executed. That portion of the sentence pertaining to confinement was deemed served. 10. On 20 July 2009, he was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial and issued a bad conduct discharge. He was credited with a total of 7 years and 11 days of net active service. 11. The applicant provided a mental health evaluation/diagnosis form from the Little Rock Community Mental Health Center, dated 23 August 2010. The document lists a treatment history of diagnosis with post-traumatic stress disorder (PTSD) at Fort Hood, TX, in 2004; hospitalization at Fort Campbell, KY, for PTSD and depression; and prescriptions for Seroquel (a medication used to treat bipolar disorder) and Ambien (a sedative used to treat insomnia) since that time. This document shows he meets the criteria for a diagnosis of PTSD, but has been repeatedly denied benefits by the VA due to his bad conduct discharge. He was referred to individual therapy to address his PTSD and anger management. 12. His military records do not contain documentation showing his complete deployment history, hospitalizations, or any diagnosis and treatment of PTSD while in the Army. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that with respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. Army Regulation 635-200 sets forth the basic authority for 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 3-11 provides that an enlisted person will be given a bad conduct discharge 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. DISCUSSION: 1. The applicant's request for clemency and an upgrade of his bad conduct discharge was carefully considered. 2. He was given a bad conduct discharge pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offenses with which he was charged, the theft of 29 Army-owned laptops and the attempted theft of an additional 15 Army-owned laptops. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. The affirmed sentence was ordered duly executed. 3. All requirements of law and regulation were met and his rights were fully protected. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 4. Although he provided medical documentation which post-dates his Army service showing a diagnosis of PTSD, the applicant is not claiming a nexus between his PTSD diagnosis and his actions. 5. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits. Each case is individually considered based on the evidence of record and the evidence presented. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009827 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009827 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2