IN THE CASE OF:	  

		BOARD DATE:	  20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014857 


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 dishonorable discharge. 

2.  The applicant states that he had a manic episode that led to his court-martial for writing bad checks and desertion.  He also adds that he is bipolar. 

3.  The applicant provides a letter, dated 12 June 2008, from a psychiatrist at the Department of Veterans Affairs (DVA) and a letter, dated 24 January 2008, from a DVA vocational rehabilitation counselor, 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 with prior enlisted service, he enlisted in the Regular Army for a period of 4 years on 11 February 1987.  He completed advanced individual training and was awarded military occupational specialty (MOS) 29F (Fixed Communications Security Equipment Repairer).  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4.  

3.  The applicant’s records also show he was awarded the Army Service Ribbon, the Overseas Service Ribbon (3rd Award), the Good Conduct Medal (2nd Award), and the Expert Marksmanship Qualification Badge with Rifle Bar (M-16). His records do not show any achievements or significant acts of distinction during this period of his military service.

4.  On 8 January 1990, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 8 February 1990.  He surrendered to military authorities at Fort Knox, Kentucky, on 30 May 1990. 

5.  On 1 June 1990, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 8 January 1990 to on or about 30 May 1990.

6.  On 1 June 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 


8.  On 6 June 1990, the applicant's immediate commander remarked that the applicant’s conduct rendered him triable by court-martial under circumstances that could lead to a bad conduct or dishonorable discharge and that based on his previous record, punishment was expected to have a minimal rehabilitative effect.  He further recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge. 

9.  On 19 June 1990, the applicant’s senior commander also recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge.

10.  There is no conclusive evidence in the applicant’s records that the separation authority approved his request for discharge in lieu of court-martial. 

11.  On 21 December 1990, the applicant pled guilty at a General Court-Martial to 10 specifications of writing worthless checks on divers occasions with intent to defraud and procure various amounts of money, between 7 December 1989 and 9 January 1990, and one specification of desertion from 9 January through 30 May 1990.  The Court also found him guilty of the charges and specifications and sentenced him to a reduction to the rank/grade of private (PVT)/E-1, forfeiture of all pay and allowances, confinement for 4 years, and a dishonorable discharge.  The sentence was adjudged on 21 December 1990.

12.  On 5 April 1991, the convening authority approved the sentence and except for that part of the sentence extending to a dishonorable discharge, ordered it executed; however, that part of the sentence adjudging confinement in excess of
20 months was suspended for 6 months.  He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

13.  On 27 June 1991, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

14.  Headquarters, U.S. Army Correctional Brigade, Fort Riley, Kansas, Special Court-Martial Order Number 319, dated 7 August 1991, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s dishonorable discharge sentence executed.





15.  The applicant was discharged from the Army on 25 February 1992.  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 AR 635-200 as a result of court-martial.  This form further shows the applicant's character of service as dishonorable and that he completed a total of 11 years and 3 months of creditable military service and had 200 days of lost time.  He also had 379 days of lost time after his normal expiration of term of service date. 

16.  The applicant submitted a statement from a DVA psychiatrist, dated 12 June 2008, who stated that the applicant is being treated for bipolar disorder and that the events leading up to his discharge from the Army are consistent with a classic manic episode associated with bipolar disorder. 

17.  The applicant also submitted a letter, dated 24 January 2008, from a DVA vocational rehabilitation counselor, who states that the applicant is currently working at a DVA hospital in San Diego, California.  He also adds that the applicant was experiencing health and legal problems during his military service which led to his subsequent discharge from the Army.  However, he already had a previous honorable discharge and left the Army only to care for his ill father.  The applicant currently receives medical and mental health treatment and is rated at 50 percent service connected disability.

18.  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.  

19.  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.

20.  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 and the supporting statements were carefully considered.  However, there is no evidence in the available records and the applicant did not provide sufficient evidence showing that his act of misconduct was directly caused by any medical conditions or that the applicant was unable to appreciate the wrongfulness of his actions.  

2.  The evidence of record shows that the applicant has a history of misconduct as evidenced by his AWOL, confinement, and extensive use of bad checks.  When court-martial charges were preferred against the applicant for AWOL, he elected to be discharged in lieu of a court-martial and his chain of command recommended approval of his discharge.  However, it appears that when the applicant's pattern of writing bad checks was discovered, the separation authority elected to convene a General court-martial.

3.  The applicant was convicted by a General Court-Martial, which was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant 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.  The applicant was given a dishonorable discharge pursuant to an approved sentence of a General Court-Martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and the rights of the applicant were fully protected.  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 an upgrade of his 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.




      _______ _   ___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.

ABCMR Record of Proceedings (cont)                                         AR20080014857



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ABCMR Record of Proceedings (cont)                                         AR20080014857



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