IN THE CASE OF:	  

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090006457 


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 to honorable.

2.  The applicant states that he is requesting an upgrade of his discharge so he can receive medical benefits from the Department of Veterans Affairs (VA).  He contends that his court-martial did not take into consideration his medical condition.  His doctors had determined that he was experiencing a mental illness for which he is still receiving treatment.

3.  The applicant provides, in support of his application, 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.  On 21 June 1979, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 16D (Hawk Missile Crewmember).

3.  On 29 October 1979, the applicant was assigned for duty as an assistant launcher with the 68th Air Defense Artillery Battalion, at Fort Bragg, North Carolina. 

4.  On 30 October 1980, the applicant was promoted to the rank of specialist four, pay grade E-4.

5.  During the period from 3 March 1981 to 26 February 1982, the applicant performed duty as a launcher crewman with the 71st Air Defense Artillery Battalion in the Republic of Korea.  On 2 March 1982, he was reassigned to the 65th Air Defense Artillery Battalion at Fort Bliss, Texas. 

6.  On 4 August 1983, charges were preferred under the Uniform Code of Military Justice (UCMJ).   Charge I was for violation of Article 89 (one specification) for disrespect toward a superior commissioned officer by saying "fuck the big man," or words to that effect.  Charge II was for violation of Article 90 (one specification) for willfully disobeying a lawful command from a commissioned officer by not remaining "at ease" when so ordered.  Charge III was for violation of Article 111 (one specification) for operating a vehicle in a reckless manner by driving a two and a half ton truck at a speed of 60 miles per hour in a 45 mile per hour zone and by driving through a stop sign without stopping.   Charge IV was for violation of Article 134 (two specifications).  Specification one was for wrongful communication of a threat to another Soldier by saying, "If you send me back to the battery I'll deal with you later because I will not forget," and thereafter saying, "I'm going to beat your mother fucking faces," or words to that effect.  Specification two was for wrongful communication of a threat to another Soldier by saying, "Your face needs rearranging and I'm going to do it," and by saying, "Your face needs to be rearranged and I'm going to rearrange your mother fucking face," and thereafter saying, "I'm going to beat your mother fucking faces," or words to that effect.

7.  On 28 November 1983, before a Military Judge at a Special Court-Martial, the applicant pled guilty to the Specification of Charge I and Charge I; guilty to the Specification of Charge II and Charge II; not guilty to the Specification of Charge III and Charge III; and not guilty to both Specifications of Charge IV and Charge IV. 


8.  On 28 November 1983, after hearing all of the evidence, the Military Judge found the applicant guilty of Charge I and its specification; guilty of Charge II and its specification; not guilty of Charge III and its specification; not guilty of specification one of Charge IV; guilty of specification two of Charge IV, excepting the words, "a threat to injure" and substituting therefor the words, "provoking words"; and excepting the words, "Your face needs rearranging and I'm going to do it" and by saying, "Your face needs to be rearranged and I am going to rearrange your mother fucking face" and thereafter saying, "I'm going to beat your mother fucking faces" and substituting therefore the words, "You are so goddamned ugly your face needs rearranging."  The applicant was found not guilty of the excepted words, and guilty of the substituted words.  The applicant was found not guilty of Charge IV; but guilty of a violation of Article 117 for provoking or reproachful words or gestures.

9.  The Military Judge sentenced the applicant to a reduction to pay grade E-1, confinement at hard labor for 90 days; a bad conduct discharge; and to pay to the United States a fine of $1,528.00.  The judge also directed that he be further confined at hard labor until said fine was paid, but for not more than 3 additional months.  No previous convictions were considered.

10.  On 26 January 1984, the Staff Judge Advocate (SJA), in a written review for the convening authority, summarized the charges and specifications, findings and sentence, and personal data of the applicant.  The SJA also stated that the applicant, in an unsworn statement, contended that he was 17 years of age when entering the Army, served at Fort Bragg, North Carolina, Korea, and at Fort Bliss, Texas.  He felt that his disrespect and disobedience of a lawful order was wrong and knew he deserved punishment for it.  The applicant related that he had been in the service for 4 1/2 years, was on the promotion list and wanted to finish his term of enlistment in the Army.  The SJA recommended that the convening authority approve the sentence.  Pending completion of the appellate review, the applicant should be confined in the Installation Detention Facility, Fort Sill, Oklahoma, or elsewhere as competent authority may direct. 

11.  On 1 February 1984, the applicant's defense counsel submitted a petition for clemency.  Counsel requested suspension of that part of the sentence pertaining to a fine of $1,582.00 and a bad conduct discharge.  Counsel argued that the applicant had pled guilty to the disrespect and to the disobedience of a lawful order without the benefit of a pretrial agreement.  He admitted at trial and in a letter to the convening authority that he was wrong and had requested to be allowed to stay in the Army.  The applicant had no previous convictions by court-martial.  He had not been punished under the provisions of Article 15, UCMJ.  The applicant had been selected as a distinguished Soldier and had not received a single adverse counseling statement in his four years of service.  The disrespect had occurred in a private conversation that was not intended to be heard by the officers the disrespect was directed against.  The disobedience of the order to be at ease occurred in the privacy of the commander's office out of sight of lower ranking Soldiers.  The applicant was very upset at the time.  Eventually, he did obey the order.  Counsel also stated that the applicant was an experienced Soldier who had served an overseas tour of duty in Korea.  Counsel argued that justice would best be served by the recommended clemency.

12.  On 7 February 1984, only so much of the sentence as provided for reduction to pay grade E-1, confinement at hard labor for 90 days, and a bad conduct discharge was approved.   

13.  On 31 July 1984, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 16 April 1985, the convening authority issued an order indicating that the sentence had been affirmed pursuant to Article 71c.  The sentence to a bad conduct discharge was ordered executed.  

14.  Accordingly, the applicant was discharged on 21 August 1985, under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3.  He received a bad conduct characterization of service.

15.  On 19 July 1991, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that the applicant's discharge was both proper and equitable and found no cause for clemency.  The ADRB denied the applicant's request for upgrade of his discharge. 

16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  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.  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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable so that he may receive VA medical 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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

3.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  

4.  There is no available evidence showing that the applicant suffered from a disabling mental condition at or prior to the time of his discharge.

5.  The applicant's desire to obtain veteran's medical benefits is not justification for an upgrade of an individual's discharge.

6.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

7.  In view of the above, there is no basis for granting the applicant's requested relief.



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)                                         AR20090006457





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ABCMR Record of Proceedings (cont)                                         AR20090006457



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