RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 December 2004
      DOCKET NUMBER:  AR2004105837


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Semma E. Salter               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his bad conduct discharge (BCD)
be upgraded.

2.  The applicant states, in effect, that he was suffering from a bipolar
disorder at the time he was court-martialed.  He claims he was not in
control of his actions and was sent to prison instead of a mental hospital.


3.  The applicant provides two Military Medical Consultation Sheets (SFs
513), Military Medical Lab Report and Hospital Discharge Instructions in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 December 1994.  The application submitted in this case
is dated 2 March 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 4 January 1983 and served through continuous
enlistments until 14 September 1994, at which time he was separated with a
BCD.

4.  The record further shows that the highest rank the applicant attained
while serving on active duty was sergeant (SGT).  It also shows that during
his tenure on active duty, he earned the Army Achievement Medal (3), Army
Good Conduct Medal (3), National Defense Service Medal with 1 bronze
service star, Noncommissioned Officer Professional Development Ribbon, Army
Service Ribbon, Overseas Service Ribbon (2), Expert Qualification Badge
with Rifle Bar and Sharpshooter Qualification Badge with Grenade Bar.
5.  On 11 June 1993, a general court-martial (GCM) found the applicant
guilty pursuant to his pleas of violating Article 92 of the Uniform Code of
Military Justice (UCMJ) by violating a lawful general regulation by
wrongfully leaving a dependent child below the age of 9 unattended in
military quarters.  He was also found guilty of two specifications of
violating Article 128 of the UCMJ by unlawfully binding a child under the
age of 16 and unlawfully grabbing his wife by the neck, throwing her to the
floor, sitting on her back, handcuffing her wrists and pushing her face to
the floor.  Finally, the applicant was found guilty of violating Article
134 of the UCMJ, by committing assault with the intent to murder his wife
by approaching her with a knife after making statements that he was going
to kill her.  The resultant sentence included reduction to the rank of
private one (PV1), confinement for 18 months, BCD and counseling for the
applicant and his family.

6.  On 8 September 1993, in Headquarters, United States Army Communications-
Electronics Command, Fort Monmouth, New Jersey
GCM Order Number 1, the court-martial convening authority approved only so
much of the sentence that provided for confinement for 18 months, reduction
to PV1 and a BCD.  All but the BCD portion of the sentence was ordered
executed.

7.  On 2 August 1994, GCM Order 208, issued by Headquarters, United States
Army Armor Center and Fort Knox, Kentucky, directed, Article 71c of the
UCMJ having been complied with, that the BCD portion of the sentence be
duly executed.  On 14 September 1994, the applicant was discharged
accordingly.

8.  The DD Form 214 issued to the applicant on the date of his separation,
14 September 1994, shows that he was separated with a BCD under the
provisions of Chapter 3, AR 635-200, as a result of court-martial.  It also
shows that at the time of his separation, he had completed a total of 10
years, 6 months and 20 days of creditable active military service and has
accrued 418 days of time lost due to confinement.

9.  The applicant provides two military medical consultation forms, both of
which are dated subsequent to his GCM conviction.  These documents show he
was diagnosed with an Axis I by-polar disorder.  However, none of the
treatment records indicate the applicant’s condition was serious enough to
render him incapable of distinguishing right from wrong and adhering to the
right.  He also provides discharge instructions from Gwinnett Hospital
System, Georgia, dated 18 August 2003.  This document shows he suffered
from a bipolar disorder; however, it also confirms he was released to his
home with outpatient follow-up treatment scheduled.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge; and provides that a Soldier will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial; and that the appellate review must be completed and affirmed
sentence ordered duly executed.

11.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was not responsible for the actions
that resulted in his GCM conviction and resultant BCD because he was
suffering from a bipolar disorder, and the supporting medical documents he
provides were carefully considered.  However, the independent evidence
provided by the applicant does not provide an evidentiary basis to support
granting the requested relief.

2.  The medical evidence provided by the applicant was all dated after his
GCM conviction and provides no indication that his disorder rendered him
not responsible for the misconduct that led to his GCM conviction and the
resultant BCD.  Further, the medical documents do not show he suffered from
a mentally disabling condition that would have warranted his
institutionalization in a mental health facility.

3.  The evidence of record confirms the applicant’s trial by court-martial
was warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
and regulations, and the discharge appropriately characterizes the
misconduct for which he was convicted.  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.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that his service was not sufficiently
meritorious to support clemency given the seriousness of the offenses for
which he was convicted.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 September 1994.  Therefore, the
time
for him to file a request for correction of any error or injustice expired
on
13 September 1997.  However, he did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show it would be in the interest of justice to excuse failure to timely
file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE   __  __SES___  __PMS__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Fred Eichorn_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105837                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/21                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1994/09/14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |GCM - BCD                               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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