IN THE CASE OF: BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150017535 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: 28 June 2016 DOCKET NUMBER: AR20150017535 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: 28 June 2016 DOCKET NUMBER: AR20150017535 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 a. He returned from Afghanistan in February 2012, with multiple honors – two Purple Hearts, a “bronze medal of honor,” and a “sharpshooter medal” – and a multitude of mental and physical issues. His new duty station was the Warrior Transition Unit (WTU), Fort Sill, OK. His treatment there was extensive and included an inpatient stay at Laurel Ridge for treatment of traumatic brain injury (TBI) and post-traumatic stress disorder (PTSD) related issues. In November 2012, he signed a medical board packet that contained diagnoses for PTSD, TBI, substantial hearing impairment, vision deficiencies, spine injuries and numerous permanent physical disabilities. His Department of Veterans Affairs (VA) rating was 100 percent and Social Security was approved. His treatment included therapy and many medications. Regrettably, in late 2012 and early 2013 he chose to put aside the coping skills he had learned at Laurel Ridge. The many prescription drugs that were included in his treatment and the stress of a training base environment were overwhelming. He chose to supplement his treatment with the use of methamphetamines. His behavior resulted in arrests on drug charges. The Army took the cases from District Court and referred him to a court-martial. His sentence consisted of 16 months of incarceration and a bad conduct discharge. Trial Defense Counsel objected to the bad conduct discharge but was overruled by the court. On appeal, a gun charge was dismissed. b. He completed his sentence and completed many self-help/self-improvement classes. He continued on a strictly-controlled medication course. Counseling was an integral part of his treatment while at Fort Leavenworth, KS. The medical personnel there advised him at pre-discharge counseling to seek continued medical care through the VA when he returned home, due to the nature of the medications: anti-depressants, anti-psychotics, and pain medications. Upon his return home from Fort Leavenworth, he did report to the VA for continued medical and mental health services and other benefits to resume his daily life as a civilian. Unfortunately, no benefits are allowed as a result of his bad conduct discharge. c. He struggled to get the assistance necessary to reintegrate. His home was in foreclosure. He was not able to find employment, and he was required to sell his car and motorcycle to maintain his other vehicle. He was unable to get the care he needed through the VA because his benefits were ended. He considered going back to school to retrain. Again benefits were not available. The bad conduct discharge caused hardship in reestablishing his life on the home front. He has worked hard to get his life back right. He has not used any illegal drugs since his pretrial detention in March 2013. He has managed his health issues without any prescription medications since August 2014 (he returned from Fort Leavenworth on 7 July 2014 with 60-day prescriptions for the medications he was taking there). In September 2014, his shared parenting/custody of his 6-year-old son was restarted. He sustained himself with employment in manual labor jobs (welder's helper), borrowed transportation, and lived with his mother. No services were available for medical or mental health. c. In March 2015, his DD Form 214 (Certificate of Release or Discharge from Active Duty) finally came through. He returned to his pre-enlistment employment with Pepsi in April 2015. He has been continually employed since then. Pre-employment and random drug screens are required by the company, and all his results have been clean. Earlier this month (October 2015), he remarried his former wife. She does a very good job of helping him stay grounded and focused on tasks he has in life. Together, they raise her daughter and his son. d. He is now back to a good and solid life. He is a drug free, productive citizen, functioning as a father, wage earner, and husband, yet the bad conduct discharge continues to create hardship for him. He served our country diligently and with sacrifice. He came home and made bad choices. He took his punishment and rehabilitation seriously, and he is now ready to go forward again. The education benefits and other benefits that would have been available to him and his family are not now available. At some point, his son will be old enough to understand his service, the war (as much as anyone can), the mistakes, and the punishments for them. He wants his son to be able to look at his records and feel proud that his father served our country so they could have a good life and live in freedom. He wants his son to know that what he did was honorable and to be proud to have him as his father. He wants to bring no disgrace to his child, his family, or his country. He believes he has paid for those bad choices and has the tools necessary to continue to succeed. He believes his service to our country, his diligent rehabilitation, and his good character warrant an upgrade of the bad conduct discharge. 3. The applicant provides a correspondence school certificate and certificates of completion. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Oklahoma Army National Guard (OKARNG) on 3 December 2009 for 1 year. He then enlisted in the OKARNG for 7 years and 46 weeks on 11 January 2010. 2. He entered active duty for training (ADT) on 4 October 2010. He completed training for award of military occupational specialty 88M (Motor Transport Operator). 3. He was honorably released from ADT on 13 August 2010 and returned to the OKARNG. He was issued a DD Form 214 that credited him with 3 months and 10 days of active service. 4. On 16 December 2010, the OKARNG ordered him to active duty, as a member of E Company, 700th Support Battalion, for a period of 400 days, beginning on 30 March 2011, in support of Operation Enduring Freedom. 5. He entered active duty on or about 27 March 2011 and subsequently served in Afghanistan from on or about 14 June 2011 to on or about 78 February 2012. During or following his Afghanistan tour, he was awarded or authorized the: * Combat Action Badge (18 August 2011) * Purple Heart (wounded on 18 August 2011) * Purple Heart (wounded on 11 September 2011) * Army Commendation Medal (for service from June 211 to March 2012) * NATO Medal (July 2011 to February 2012) * Meritorious Unit Commendation (15 July 2011 to 15 March 2012) 6. On 10 April 2012, the U.S. Army Human Resources Command published orders retaining him on active duty to participate in the Reserve Component Warriors in Transition Medical Retention Processing Program. He was assigned to the WTU, Fort Sill, OK. 7. On 7 May 2012, the applicant was involved in a traffic stop while riding in a vehicle in Cleveland County, OK. During a lawful search of the vehicle, police found a 9mm handgun and 26 grams of methamphetamine under the passenger front seat where the applicant was sitting. He admitted to not possessing a permit to carry a concealed weapon and to placing the weapon under the seat to conceal it. Court-martial charges would later be preferred against him. 8. On 10 December 2012, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using illegal drugs between 28 July and 28 August 2012 and twice failing to go to his appointed place of duty (formation and medical appointment). His punishment consisted of a reduction to E-1, a forfeiture of pay, extra duty and restriction, and an oral reprimand. 9. On 3 March 2013, during a routine traffic stop of the vehicle he was driving, police found the applicant was driving on a suspended license. During the vehicle impound, police discovered 47 baggies (of illegal drugs). The applicant admitted to having used methamphetamine for about a month. He was arrested for possession with intent to distribute and multiple other traffic-related charges. He was detained and arraigned but pled not guilty and was released on bond. 10. On 7 June 2013, he was arraigned on the following offenses at a general court-martial convened by the Commander, Fires Center of Excellence and Fort Sill, Fort Sill, OK: * Charge I, one specification of disobeying a lawful order from a superior commissioned officer * Charge II, one specification of wrongfully possessing, more or less, 26 grams of methamphetamine with intent to distribute, and one specification of wrongfully using methamphetamine * Charge III, one specification of larceny (stealing a pair of shoes from the Army Air Force Exchange Service) * Additional Charge I, one specification of unlawfully carrying a concealed weapon (9mm handgun) without proper licensing and conduct to the prejudice of good order and discipline of the armed forces and of a nature to bring discredit upon the armed forces * Additional Charge II, six specifications of wrongfully possessing different amounts of methamphetamine on divers dates 11. The court found him guilty of all charges and specifications and sentenced him to confinement for 21 months and a bad conduct discharge. Also on 7 June 2013, prior to starting his confinement, a medical evaluation board officer at Reynolds Army Community Hospital certified that he examined the applicant and found him medically fit. 12. On 7 November 2013, the convening authority approved only so much of the sentence as provided for confinement for 21 months and a bad conduct discharge (the automatic forfeiture of all pay and allowances were waived effective 20 June 2013 for 6 months) and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 13. On 21 March 2014, the U.S. Army Court of Criminal Appeals set aside and dismissed Additional Charge I and its specification but affirmed the remaining approved findings of guilty and the sentence. 14. The applicant was released from confinement at the Joint Regional Correctional Facility, Fort Leavenworth, KS, on 8 July 2014. 15. On 3 September 2014, the U.S. Court of Appeals of the Armed Forces denied his petition for a grant of review of his case. 16. General Court-Martial Order Number 310, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, on 9 October 2014, shows: * pursuant to Article 66, UCMJ, the findings of guilty of the Additional Charge and its specification were set aside and dismissed * the remaining findings of guilty and only so much of the sentence as provided for confinement for 20 months and a bad conduct discharge were affirmed * the bad conduct discharge would be duly executed after completion of all required post-trial and appellate reviews 17. The applicant was discharged from active duty (and the OKARNG) on 7 November 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged as a result of a court-martial in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) with a bad conduct discharge. His DD Form 214 shows an incorrect entry date of 4 May 2010 and credit for 2 years, 3 months, and 6 years, of active service this period. He had time lost from 4 March 2013 to 8 July 2014. 18. Prior to his discharge, the applicant acknowledged that he was not required to undergo a medical examination for separation from active duty and that such examination was voluntary. He indicated he did not desire a separation medical examination. 19. He provides certificates of completion of a correspondence course, an emotional awareness course, and a leadership course. 20. On 10 November 2010, a staff member of the Board corresponded with the applicant and requested he provide the medical documents that support his issue of PTSD, including any VA records. He did not respond. REFERENCES: 1. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. 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 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain circumstances. d. Paragraph 3–11 states that a Soldier will be given a bad conduct discharge 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. Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate. DISCUSSION: 1. The applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. He disobeyed orders, wrongfully possessed and used illegal drugs, and stole from an on-post store. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 2. He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. 4. The court-martial (and subsequent appellate review) would have been the proper forums to raise the issues he now raises. Additionally, he failed to provide the medical evidence that confirms his serious offenses were caused by any medical condition. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017535 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017535 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2