IN THE CASE OF:	

		BOARD DATE:	       6 January 2009

		DOCKET NUMBER:  AR20080014696 


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 that his bad conduct discharge be upgraded.

2.  The applicant states, in effect, that he is requesting a discharge upgrade for entitlement to Department of Veterans Affairs (DVA) benefits.  He indicates that he requested help for his mental health issues throughout his enlistment but was ignored by his commander.  He contends that he sought assistance on his own accord during advanced individual training; however, the symptoms of his mental illness were minimized by the psychiatrist.  He claims that he went absent without leave (AWOL) to seek help for his mental illness and that he was admitted to various inpatient psychiatric hospitals due to his delusional thinking, schizophrenia, and Post Traumatic Stress Disorder.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Regular Army on 31 May 1977 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 11B (infantryman).  On 2 December 1979, he was honorably discharged for immediate reenlistment.  He reenlisted on 3 December 1979 for a period of 6 years. 

3.  On 15 August 1983, in accordance with his pleas, the applicant was convicted by a special court-martial of two specifications of being AWOL, from 18 October 1980 to 20 October 1980 and from 2 November 1980 to 5 July 1983.  He was sentenced to be reduced to E-1, to forfeit $382 pay per month for 2 months, to be confined at hard labor for 2 months, and to be discharged from the service with a bad conduct discharge.  On 27 September 1983, the convening authority approved the sentence.

4.  On 25 January 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  On 26 April 1984, the U.S. Army Court of Military Appeals denied the applicant’s petition for grant of review of the decision of the U.S. Army Court of Military Review.

5.  16 May 1984, the convening authority ordered the bad conduct discharge to be executed.

6.  Accordingly, the applicant was discharged with a bad conduct discharge on 
25 May 1984 under the provisions of Army Regulation 635-200, chapter 
3, as a result of a court-martial.  He had served a total of 4 years, 2 months, and 6 days of creditable active service with 1,022 days of lost time due to AWOL and confinement.  

7.  There is no evidence of record which shows the applicant was diagnosed with any mental condition prior to his discharge on 25 May 1984.  

8.  On 6 June 1988, the Army Discharge Review Board denied the applicant’s request for a general discharge.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation 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. 
10.  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.  

11.  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.

12.  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.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

2.  Trial by 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.

3.  There is no evidence of record to show the applicant had a mental condition or that he was incompetent to stand trial. 

4.  The applicant's record of service included one special court-martial conviction 1,022 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  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
      




ABCMR Record of Proceedings (cont)                                         AR20080014696





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ABCMR Record of Proceedings (cont)                                         AR20080014696



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