IN THE CASE OF:	  

		BOARD DATE:	        13 August 2008

		DOCKET NUMBER:  AR20080005341 


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 to a general or any appropriate discharge. 

2.  The applicant states that he suffered from and was diagnosed with schizophrenia during his military service and that his court-martial was a result of this condition.

3.  The applicant provided an undated and unsigned self-authored letter in support of his application.

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's records show he was born on 31 May 1968 and enlisted in the Regular Army at the age of 17 for a period of 3 years on 30 July 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.  

3.  The applicant’s awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, the Noncommissioned Officer Professional Development Ribbon, the Army Commendation Medal, the Army Achievement Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Expert Marksmanship Qualification Badge with Pistol Bar (.45 Caliber).

4.  On 25 August 1988, the applicant pled guilty at a General Court-Martial to 11 specifications of wrongfully and willfully making and uttering certain checks, at various exchange facilities and banks, in various amounts, then knowing that he did not or would not have sufficient funds, on various dates in February 1988; and one specification of wrongfully possessing a certain instrument, an application for an identification card, knowing it to be false, on or about 9 February 1988.  The Court also found him guilty of the charges and specifications and sentenced him to a dishonorable discharge, forfeiture of all pay and allowances, a fine of $5000.00, reduction to the lowest enlisted grade, and confinement for 18 months.  The sentence was adjudged on 25 August 1988.

5.  On 18 October 1988, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  The convening authority also ordered the part of the sentence adjudging confinement in excess of 10 months, suspended for 10 months, and except for the part of the sentence that extended to a bad conduct discharge, he ordered it executed.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 6 January 1989, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  On 13 March 1989, the Commander, U.S. Army Correction Activity (USACA), Fort Riley, Kansas, approved the remission of the unexecuted portion of the applicant’s confinement, effective 24 March 1989.  Accordingly, Headquarters, U.S. Army Correction Activity, Fort Riley, Kansas, published General Court-Martial Order Number 311 on 24 March 1989, that shows the unexecuted portion of the applicant’s approved sentence to confinement was remitted.  
8.  Headquarters, U.S. Army Correction Activity, Fort Riley, Kansas, General Court-Martial Order Number 430, dated 3 May 1989, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

9.  The applicant was discharged from the Army on 10 May 1989.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 2 months, and 10 days of creditable military service.  He also had 211 days of lost time due to confinement. 

10.  In his undated and unsigned self-authored statement, the applicant states that he had a schizophrenic episode during his military service and that he obtained a false identification card and cashed several checks without sufficient funds and was court-martialed accordingly.  He also states that he suffered from schizophrenic effect that was missed during his enlistment physical and that he continues to suffer from that condition today.  He concludes that he was young, attained the rank/grade of SGT/E-5, and served his country proudly. 

11.  Army Regulation 635-200, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of 
Military Records 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant was 17 years of age at the time of his enlistment and nearly 20 years of age at the time of his offense.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of misconduct was the result of his age.

3.  There is no evidence in the available record and the applicant failed to provide any evidence that shows he suffered from and/or was diagnosed with schizophrenia, or that he addressed such a serious condition with medical authorities.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of misconduct was the result of this alleged schizophrenia.

4.  The applicant’s trial by a General Court-Martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  The applicant’s discharge accurately reflects his military service at that time.

5.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  DENY APPLICATION

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 for correction of the records of the individual concerned.



      			XXX
               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.

ABCMR Record of Proceedings (cont)                                         AR20080005341



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ABCMR Record of Proceedings (cont)                                         AR20080005341



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