BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150017040 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 BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150017040 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 to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20090015998, dated 2 March 2010. ____________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. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20150017040 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 reconsideration of his previous request for an upgrade of his bad conduct discharge. 2. The applicant states: a. He believes that he deserve a second chance. He was illegally detained by his unit from around December 2005 to February 2006, prior to his court-martial. He was assigned to the 6th Squadron, 6th Cavalry, 11th Regiment. The first sergeant issued a direct order to have him [applicant] incarcerated in a single man room with another Soldier. There were guards posted at the door to ensure that they did not leave and they were required to sign in and out every time they went on duty or to the dining facility. He was also assigned extra duty for the same period of time of about 90 days. Prior to the extra duty and incarceration, the unit had a history of detaining him to the post because he was experiencing psychological issues (separation anxiety). b. The following incidents led to his mental breakdown and ultimately led him to drink heavily resulting in him getting into trouble. He is not excusing his behavior by any means. He understands what he did was wrong and he believes that he has suffered enough because of it. When he first arrived at his unit, he and another Soldier went out and they were robbed and jumped by a crowd of Turkish men. He was restricted to post because of this incident. Even though it was not his fault, the unit felt he needed to stay on post for his own safety. c. Following this restriction, he purchased a vehicle and was involved in an accident due to his own negligence. He failed to slow down at a right turn and swerved off into a sign. The unit took away his driver’s license and restricted him to the post for 6 months. He knows that he was wrong for crashing his vehicle, but it was not intentional. This should not have been a reason to restrict him to the post for 6 months. After the alleged incident, he was placed on extra duty and restricted from having contact with the victim. He was also reassigned to a special platoon that consisted of Soldiers who were in trouble. They had to hold a broom stick as their company flag. d. He was not punished in accordance with the Uniform Code of Military Justice. His unit took the law into their own hands and this had a great impact on his mental state that led him to drink. Again, he does not condone his behavior or excuse it because he had a drinking problem. He is requesting clemency so he can apply for medical benefits. 3. The applicant provides two copies of a Student Academic Transcript. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090015998, dated 2 March 2010. 2. The applicant provided a new argument requiring consideration by the Board. 3. He enlisted in the Regular Army on 7 August 2004 and he held military occupational specialty 63J (Quartermaster and Chemical Equipment Repairer). He was promoted to pay grade E-4 on 7 August 2005. 4. On 23 May 2006, he was convicted by a general court-martial of one specification each of indecent assault with intent to gratify his lust, threatening to do bodily harm to another Soldier, unlawfully entering into another Soldier's room, wrongfully leaving the scene of an accident without making his identity known, drunk and disorderly conduct, being found drunk on duty, operating a vehicle while drunk, wrongful appropriation of a government vehicle, and damage to a government vehicle by operating it in a neglectful manner. The court sentenced him to a reduction to pay grade E-1, confinement for 20 months, a forfeiture of $849.00 pay for 20 months, and a bad conduct discharge. 5. On 22 September 2006, the convening authority approved the sentence, except for the bad conduct discharge, and ordered it duly executed. 6. Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, General Court-Martial Order Number 176, dated 21 August 2008, shows that after completion of all required post-trial and appellate reviews, the separation authority ordered the sentence executed. 7. He was discharged in pay grade E-1 on 14 November 2008, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3. As a result of court-martial. He completed 4 years, 7 months, and 11 days of active service and had 241 days of time lost. His service was characterized as bad conduct. 8. His record does not contain any available medical records. 9. On 2 March 2010, the ABCMR denied his petition for an upgrade of his discharge. 10. He provided two copies of a Student Academic Transcript, dated 8 October 2015, showing he was awarded a Bachelor of Science in Computer Engineering on 31 May 2011. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated: a. Paragraph 3-11 – A Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed. b. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. 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 change a court-martial 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. DISCUSSION: 1. The applicant appears to contend that his unit members did not comply with the Uniform Code of Military Justice and took justice into their own hands. However, the record shows his chain of command charged him with multiple violations of the Uniform Code of Military Justice. The applicant was tried and then convicted by a general court-martial for multiple violations to include indecent assault with intent to gratify his lust. The court-martial imposed a bad conduct discharge among other punishments. His discharge was affirmed and he was discharged accordingly on 14 November 2008. 2. His trial by a general court-martial was warranted by the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations with due process with no apparent violation of his rights. 3. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 5. The applicant states he had separation anxiety that apparently he believes led to his multiple acts of misconduct. He provides no medical evidence from his period of service to support his contention. The ABCMR does not normally correct records solely for the purpose of establishing eligibility for medical benefits. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017040 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017040 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2