IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090006785 


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 upgrade of his bad conduct discharge (BCD) to a general, under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, that he joined the military to serve and to become a better person.  He hoped to make the military a career.  He became anxious and paranoid.  He thought people were picking on him.  He was labeled an outsider.  He was afraid to go to the field with those people, so he went absent without leave (AWOL) and he received a BCD.  He explained to the judge why he didn't want to be in the field with the same people with whom he had an altercation and what he had heard.  The judge told him not to accept the prosecution's request and to present his case.  However, at the time he was tired and all his problems came down on him at once.  He does not think he should have been treated so severely.  He was discharged without even a medical evaluation.  The ending of his career was unfair because it was based on a single incident.
 
3.  The applicant provides no additional documentation 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.  Following initial active duty for training (IADT) and service in the Army National Guard for about a total of 2 years, 4 months, and 18 days, the applicant enlisted in the Regular Army (RA) on 19 August 1987.  

3.  He completed training in military occupational specialty (MOS) 13B (cannon crewmember), he was stationed at Fort Bragg, NC, for approximately 9 months, and he was then transferred to Germany.  He was advanced to pay grade E-3 in November 1988 and to pay grade E-4 in August 1989.

4.  On 23 March 1990 he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for making a false official report.  The punishment consisted of reduction to pay grade E-3, forfeiture of $224 per month for 1 month, and 14 days of restriction and extra duty.

5.  On 27 July 1990, the applicant pled guilty before a special court-martial to violation of Article 86, UCMJ, for being AWOL from 22 May to 26 May 1990 [found guilty of unauthorized absence from place of duty] and AWOL from
27 May to 24 June 1990; to violation of Article 95, UCMJ, by escaping from custody on 1 June 1990 [dismissed on Government's motion], resisting apprehension on 1 June 1990, and escaping from custody on 24 June 1990; and to violation of Article 134, UCMJ, by being drunk and disorderly on 16 May 1990.

6.  The adjudged sentence of reduction to pay grade E-1, forfeiture of $482 pay per month for 4 months, confinement for 3 months, and a bad conduct discharge was approved as adjudged and, except for the bad conduct discharge, was ordered executed.

7.  On 25 February 1991, the U.S. Army Court of Military Review took action to correct a technical error in the court-martial order to show that there had been a finding of guilty to the Article 95 charge. 


8.  On 15 November 1991, Article 71(c), UCMJ having been complied with, the bad conduct discharge was ordered executed.

9.  The applicant was accordingly discharged on 19 December 1991.  He had
4 years, 4 months, and 1 day of service this period and a total of 4 years,
7 months, and 10 days of total creditable service.

10.  The applicant's medical records comprise approximately 70 pages.  They show that in 1990 he received medical attention on at least 19 different days, including a separation physical examination.  There is no indication that he expressed anything to any medical personnel about any psychological, emotional, or personal problem.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Paragraph 3-7b of Army Regulation 635-200 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.

13.  Court-martial convictions stand as adjudged or modified through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Boards 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 only then if clemency is determined to be appropriate.  Clemency is an act of mercy or leniency to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he joined the military to serve and to become a better person.  He hoped to make the military a career.  He became anxious and paranoid.  He thought people were picking on him.  He was labeled an outsider.  He was afraid to go to the field with those people, so he went AWOL.  When he explained all this to the military judge, he (the judge) told him not to accept the prosecution's request and to present his case.  However, at the time he was tired and all his problems came down on him at once.  He does not think he should have been treated so severely.  He was discharged without even a medical evaluation.  The ending of his career was unfair because it was based on a single incident.

2.  There is no available evidence of any psychological, emotional, or personal problem that might have contributed to his misconduct.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The applicant's court-martial conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  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.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20090006785



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ABCMR Record of Proceedings (cont)                                         AR20090006785



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