IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150012082 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: 10 May 2016 DOCKET NUMBER: AR20150012082 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: 10 May 2016 DOCKET NUMBER: AR20150012082 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. 2. The applicant states: * the events leading to the end of his military career began on a Sunday afternoon in May 2012 on Fort Richardson, AK * he and his wife had a marital dispute which led to him pushing her up against the wall while she was holding their 5-month old daughter * when he realized what he had done, he left the residence and turned himself in at the duty station on base because he knew the military police would be called * since then he has regretted his actions on that day * he realized he should have just left the residence instead of retaliating against her comments * he will forever regret his actions * until that time, his military record had been unblemished * from the moment he joined the Army, his goals were to get promoted, lead by example, and give it all he had * he spent 7 years of his life in the Army from 2005 through 2012 and grew to be a fine Soldier * he reached the rank of sergeant and has many awards showing his hard work * he honorably served as a motor transport operator for 22 months in support of Operation Iraqi Freedom, where he suffered a concussion after he fell from a heavy equipment transporter and was unconscious for over 1 minute * since then he has experienced periodic headaches and is currently under the care of a neurologist * most importantly, he is the father of a precious daughter who depends on his support and parenting * he is asking for retention of his Department of Veterans Affairs benefits * he served his country honorably with respect to his leaders and fellow Soldiers 3. The applicant provides: * self-authored statement * four DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report) * two Army Commendation Medal (ARCOM) Certificates * two Army Achievement Medal (AAM) Certificates * U.S. Army Infantry School Airborne Course Diploma * Certificate of Achievement * three Certificates of Training * CrossFit Certificate of Attendance * DA Form 4430 (Department of the Army Report of Result of Trial), dated 11 October 2012 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * three letters of recommendation CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 21 April 2005. 2. He provided four NCO evaluation reports covering the periods 31 October 2008 through 31 July 2009, 1 August 2009 through 28 February 2010, 1 March 2010 through 28 February 2011, and 28 February 2011 through 6 June 2011. All evaluations show: * he was rated either "Among the Best" or "Fully Capable" by his rater * his overall performance was rated "Successful" with either the 1 or 2 block marked on each by his senior rater * and his overall potential for promotion and/or service in positions of greater responsibility was rated as "Superior" with either the 1 or 2 block marked on each by his senior rater 3. He also provided multiple certificates showing he was awarded the following throughout his Army career: * Airborne Course Diploma, dated 21 October 2005 * Certificate of Achievement, dated 25 February 2006 * AAM, dated 20 March 2007 * ARCOM, dated 17 June 2007 * AAM, dated 1 October 2007 * ARCOM, dated 19 August 2008 * Bus Driver's Course Certificate of Training, dated 26 March 2010 * 82nd Airborne Corps NCO Academy Instructor Training Course Certificate of Training, dated 18 February 2011 * Combat Life Saver Course Certificate of Training, dated 30 September 2011 4. Headquarters, U.S. Army Alaska General Court-Martial Order Number 12, dated 6 June 2013, shows the applicant appeared before a general court-martial which convened at Joint Base Elmendorf-Richardson, AK, on 27 September 2012. He was charged with and found guilty of: * unlawfully holding his wife down by her arms with his hands on or about 18 June 2011 * unlawfully pushing a pillow into his wife's face with his hands on or about 5 May 2012 * unlawfully grabbing his wife on the neck with his hand, pushing her into a wall with his hands, and choking her with his right hand on or about 6 May 2012 * endangering the safety of a child under the age of 16 years, in his case by assaulting his wife while she was holding the child, conduct which constituted culpable negligence 5. On 27 September 2012, he was sentenced to reduction to the rank/grade of private/E-1, confinement for 60 days, and separation from the service with a bad conduct discharge. The sentence was approved and except for the portion extending to a bad conduct discharge, ordered executed. 6. On 12 November 2013, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence in his court-martial. 7. On 18 April 2014, he was discharged accordingly. 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 and issued a bad conduct discharge. He had a total of 8 years, 10 months, and 10 days of net active service with time lost during the period 27 September 2012 through 14 November 2012. The remarks block shows he had continuous honorable active service from 21 April 2005 to 10 March 2011. 8. The applicant provided three letters of recommendation. a. The first letter is from an individual who has known the applicant since the time of his birth and attests to his positive relationship with his wife and daughter and outstanding job performance since returning home after his service to his country. b. The second letter is from the pastor of the Olivet Baptist Church who has observed the applicant to display a genuine sorrow about his past decisions, to regularly attend church, to perform well at his job, and to be on the path to moving forward in his life as the result of his hard work and dedication. c. The third letter is also from an individual from the applicant's hometown who has known him since childhood. He considers the applicant to be an upright individual and always respectful of others. By virtue of his two deployments to Iraq, he should be entitled to all rights and benefits available to veterans who have made sacrifices in service to our country. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. 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. 3. The U.S. Department of Veterans Affairs Pamphlet 80-14-01 (Federal Benefits for Veterans, Dependents, and Survivors) provides a summary of benefits effective 1 January 2013. These benefits are codified in Title 38, U.S. Code. Eligibility for most Department of Veterans Affairs benefits is based upon discharge from active military service under other than dishonorable conditions. Veterans must contact the Department of Veterans Affairs to determine eligibility. DISCUSSION: 1. The applicant's prior record of honorable service, his deployments, his awards, and the statements of support he provided were carefully considered. 2. He was given a bad conduct discharge pursuant to an approved sentence by a special court-martial that was warranted by the gravity of the offenses with which he was charged. 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 appellate review was completed and the affirmed sentence 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. 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. 5. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' 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) AR20150012082 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012082 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2