IN THE CASE OF:	  

		BOARD DATE:	  7 May 2009

		DOCKET NUMBER:  AR20080019275 


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 (BCD) be upgraded.

2.  The applicant states at the time of his discharge he suffered from post-traumatic stress disorder (PTSD) which was the reason for his court-martial.

3.  The applicant further states that he receives supplemental security income (SSI) benefits for his PTSD.  However, he cannot get PTSD counseling and treatment from the Department of Veterans Affairs (VA) due to his BCD.

4.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim), dated 5 November 2008; a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 6 November 2008; and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 6 November 2008.

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 10 January 1966 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant was honorably discharged on 9 January 1967 and immediately reenlisted on 10 January 1967.

4.  The applicant arrived in Vietnam and was assigned to Company D, 2d Battalion, 5th Cavalry, 1st Cavalry Division, on or about 17 February 1967.  He was promoted to the rank and grade of specialist four (SP4)/E-4 on 20 July 1967.

5.  On 8 October 1967, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for missing a mass movement.

6.  The applicant departed Vietnam on or about 10 February 1968.

7.  On 17 April 1968, the applicant accepted NJP under Article 15, UCMJ, for not being at his appointed place of duty, drinking while on duty, and two specifications of disobeying a lawful order from a noncommissioned officer.

8.  On 10 June 1968, the applicant was convicted by a summary court-martial of participating in a breach of peace, destroying military property by fighting, and disobeying a lawful order.  His sentence consisted of a reduction to the rank of private/pay grade E-1, a forfeiture of $90.00 per month for 1 month, and confinement at hard labor for 1 month.

9.  On 7 August 1968, the applicant was convicted contrary to his pleas by a special court-martial of committing an assault, being drunk and disorderly, and disrespectful language.  His sentence consisted of a reduction to the rank of private/pay grade E-1, a forfeiture of $97.00 per month for 6 months, and confinement at hard labor for 6 months.

10.  On 19 December 1968, the applicant underwent a psychiatric evaluation by a military psychiatrist.  The psychiatrist diagnoses consisted of passive aggressive personality, aggressive type, chronic, moderate, characterized by poor judgment, unconcern for others, explosive outbursts of anger, and aggression.
11.  The military psychiatrist determined that the applicant related affably, cooperatively, coherently, and logically during the interview.  The military psychiatrist further stated that the applicant's pattern of maladaptive behavior consisted of frequent and repeated aggressive behavior, irresponsibility, and poor judgment.  This pattern was present prior to service and was quiescent only during his tour of duty in Vietnam.  The tour in Vietnam, where aggressivity was a valued trait, probably contributed to his clean record during that year.  He concluded by recommending that the applicant be administratively separated from the service.

12.  On 1 February 1969, the applicant was convicted in accordance with his pleas by a special court-martial of disorderly conduct and going AWOL on 27 December 1968.  His sentence consisted of a reduction to the rank of private/pay grade E-1, a forfeiture of $97.00 per month for 1 month, and confinement at hard labor for 30 days.

13.  On 17 June 1969, the applicant was convicted in accordance with his pleas by a general court-martial of being AWOL for the period 2 March 1969 through 25 March 1969, escaping from lawful custody, and wrongfully having in his possession a DA Form 31 (Request and Authority for Leave) with the purpose to deceive.  His sentence consisted of a forfeiture of all pay and allowances for 1 year, confinement at hard labor for 1 year, and a BCD.  The convening authority approved only so much of the sentence as provided for 9 months of confinement, total forfeitures, and a BCD.

14.  On 3 October 1969, the U.S. Army Court of Military Review considered the applicant's appeal and found that the findings and sentence were correct in law and fact and affirmed the findings and sentence.

15.  Headquarters, U.S. Army Training Center Infantry and Fort Dix, General Court-Martial Order Number 143, dated 5 December 1969, shows that the sentenced had been affirmed and that the unexecuted portion of the sentence to confinement at hard labor for 9 months was remitted.  The general court-martial convening authority directed that the BCD be executed.

16.  On 30 December 1969, the applicant was discharged from the Army with a BCD under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations) by reason of court-martial.  He completed 1 year, 7 months, and 15 days of creditable active service on his last enlistment.  The applicant completed a total of 2 years, 7 months, and 15 days of creditable active service with 281 days of lost time due to AWOL and confinement.

17.  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.

18.  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.

19.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  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 he suffered from PTSD and that PTSD was the reason for his court-martial.  However, there is no evidence and the applicant has not provided evidence that shows he suffered from PTSD or that any mental disorder was the cause of his problems while serving in the military.  He further contends that due to his BCD he cannot get counseling and treatment for his PTSD.  The ABCMR does not correct records solely for the purpose of obtaining eligibility for VA benefits.

2.  The evidence of record confirms that 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.

3.  By law, the ABCMR may not disturb the finality of a court-martial.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.

4.  The applicant's entire record of service was considered in this case.  However, given the seriousness of the offenses for which he was convicted, it is determined that his service was not sufficiently meritorious or mitigating to warrant the relief requested.

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)                                         AR20080019275



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ABCMR Record of Proceedings (cont)                                         AR20080019275



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