IN THE CASE OF:	  

		BOARD DATE:	        5 August 2008

		DOCKET NUMBER:  AR20080006440 


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, in effect, an upgrade of his discharge.

2.  The applicant states that he had an undiagnosed mental illness at the time, that is now being treated, which contributed to his behavior during his military service and that he was never given a psychiatric evaluation after his suicide attempt.  

3.  The applicant did not provide any additional documentary evidence 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 that he enlisted in the Regular Army for a period of 4 years on 2 May 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63J (Quartermaster and Chemical Equipment Repairman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.

3.  The applicant's records further show that he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Marksman Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 3 January 1985, for leaving his appointed place of duty without authority, on or about 14 December 1984, and for failing to go at the time prescribed to his appointed place of duty, on or about 13 December 1984.  His punishment consisted of reduction to PVT/E-1 and 14 days of extra duty; 

	b.  on 29 January 1985, for willfully destroying a pool cue (by breaking it over a railing), a value of about $7.75, military property, on or about 24 December 1984; being drunk and disorderly, on or about 24 December 1984; and for being absent without leave (AWOL) from 13 January 1985 through 15 January 1985.  His punishment consisted of a forfeiture of $144.00 pay for 1 month, 14 days of restriction, and 14 days of extra duty; 

	c.  on 25 February 1985, for failing to go at the time prescribed to his appointed place of duty on four separate occasions, on 20 January 1985,
31 January 1985, 3 February 1985, and 5 February 1985.  His punishment consisted of a forfeiture of $300.00 pay per month for 2 months (1 month or $300.00 of which was suspended until 24 August 1985), 45 days of extra duty, and 45 days of restriction; 

	d.  on 12 March 1985, the suspended portion of the applicants punishment,
imposed on 25 February 1985, was vacated when the applicant failed to go at the time prescribed to his appointed place of duty, on 6 March 1985; and

	e.  on 12 September 1985, for wrongfully using marijuana, sometime during the period of 27 August 1985 and 5 September 1985.  His punishment consisted of a forfeiture of $100.00 pay for 1 month, 10 days of restriction, and 45 days of extra duty.

5.  On 5 December 1985, the applicant appeared before a General Court-Martial at Fort Carson, Colorado, and pled:

	a.  Not guilty to Charge I, one specification of conspiracy with three other Soldiers to commit larceny of an automobile, of some value, the property of another Soldier, on 21 September 1985; Charge V, one specification of wrongfully using some amount of lysergic acid diethylamide (LSD), on or about 25 August 1985; and Charge VI, one specification of larceny of an automobile, of some value, the property of another Soldier, on 21 September 1985; and

	b.  Guilty to Charge II, one specification of unauthorized absence from 21 September 1985 to 24 September 1985; Charge IV, one specification of failing to obey a lawful order, on or about 10 September 1985; and Charge V, three specifications of wrongfully using some amount of marijuana, on 16 September 1985; wrongfully distributing some amount of marijuana, on 18 September 1985; and wrongfully possessing some amount of marijuana, on 20 September 1985.

6.  The Court found the applicant guilty in accordance with his pleas and sentenced him to forfeiture of all pay and allowances, confinement for 9 months, and a bad conduct discharge.  The sentence was adjudged on 5 December 1985.

7.  On 11 February 1986, the convening authority approved the applicant's sentence, 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 review by the Army Court of Military Review.

8.  On 3 April 1986, the applicant elected not to undergo a medical examination for separation.  However, on an unknown date prior to his separation, he underwent a mental/psychiatric evaluation.  The Chief, Physical Examination Center, remarked that the applicant was mentally responsible and met retention requirements.  

9.  On 8 April 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

10.  Headquarters, U.S. Correctional Activity, Fort Riley, Kansas, General Court-Martial Order Number 556, dated 28 July 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

11.  The applicant was discharged from the Army on 28 May 1987.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a bad conduct discharge.  This form further shows the applicant completed 2 years, 5 months, and 4 days of creditable military service and had 232 days of lost time.

12.  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.

13.  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.

14.  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’s contention that his discharge should be upgraded was carefully considered based on an undiagnosed mental illness was carefully considered; however, there is insufficient evidence to support this claim. 

2.  The evidence of record shows the applicant underwent a mental/psychiatric evaluation prior to his discharge and that he was found to have the mental capacity to understand and participate in any proceedings.  Furthermore, there is no evidence in the available record and the applicant did not submit any substantiating evidence that shows his extensive pattern of misconduct was a result of any mental problems.
3.  The evidence of record shows the applicant had a history of misconduct; including multiple instances of nonjudicial punishment, multiple instances of being AWOL, and a General Court-Martial.  His trial by General Court-Martial was warranted by the gravity of the offenses 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.

4.  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.

5.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to relief.

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)                                         AR20080006440



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080006440



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1