IN THE CASE OF:	  

		BOARD DATE:	        3 September 2009

		DOCKET NUMBER:  AR20090007045 


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 an honorable discharge.

2.  The applicant states, in effect, he was offered the opportunity to reenlist and go overseas, he injured his head, and he has had problems ever since he left the military.  He adds he now has mental problems, has not had a job to speak of since he left the Army, and he needs medical care from the Department of Veterans Affairs (VA).

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated
12 March 2009; DD Form 214 (Certificate of Release or Discharge from Active Duty); and an undated letter.

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 entered active duty in the Regular Army for a period of 3 years on 23 June 1980.  Upon completion of training, he was awarded military occupational specialty 63H (Track Vehicle Repairer).  He was then assigned to the 704th Maintenance Battalion, Fort Carson, Colorado.

3.  The applicant’s military service records are absent any evidence that he served outside the continental United States.

   a.  A Standard Form (SF) 558 (Medical Record - Emergency Care and Treatment), dated 10 September 1981, shows the applicant was treated at the Hospital Emergency Room, Fort Carson, Colorado for an injury (i.e., laceration and contusion) on his scalp.  This document also shows that he was alert and oriented at the time, x-rays of his skull were taken, the laceration was sutured and dressed, he was instructed to keep the injury dressed and dry, and his condition upon release from the emergency room was stable.

   b.  An SF 600 (Health Record - Chronological Record of Medical  Care), dated 11 September 1981, shows the applicant returned to the Troop Medical Clinic, Fort Carson, Colorado, for a check-up on the cut on the top of his head.  This document shows there was no sign of infection, the dried blood was removed from the injured area, and the applicant was given 24 hours quarters.  

   c.  The applicant’s military service records are absent any further record of medical treatment pertaining to the applicant’s head injury.

4.  At a special court-martial on 25 March 1982, the applicant pled not guilty to wrongfully possessing, transferring, and selling mushrooms containing psilocybin and two instances of wrongfully possessing, transferring, and selling marijuana.  The applicant was found guilty of all charges and specifications, and sentenced to reduction to private (E-1) and a bad conduct discharge.  On 21 July 1982, the convening authority approved the sentence, except for the bad conduct discharge; directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Board of Review; and ordered the applicant be retained within the command pending completion of the appellate review.

5.  On 9 February 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved.  The U.S. Court of Military Appeals denied the applicant’s Petition for a Grant of Review on 15 June 1983. On 15 July 1983, the provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.
6.  On 2 August 1983, the applicant was discharged with a bad conduct discharge.  At the time of his discharge he had completed 3 years, 1 month, and 10 days of net active service during the period of service under review.  He also had 441 days of excess leave from 7 April 1982 to 2 August 1983.

7.  In support of his application the applicant provides a letter from his sister, Judy G____.  In her letter she states the applicant told her he was picked from his unit in Colorado to go on a 30-hour flight that had several stopovers, they arrived at a destination to help fix equipment being used for desert warfare, and took fire that resulted in one casualty.  She adds that her brother “has been messed up since he got out of the military,” has not been able to get a job, is mentally incompetent, and he needs help.

8.  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.

9.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 because he injured his head while serving in the Army, he has had problems ever since he was discharged, and he needs medical care from the VA.

2.  The applicant’s records show he received medical treatment for a head injury that he sustained on 10 September 1981, he was in stable condition when he was released from the medical facility on 10 September 1981, and he returned on his own to the medical facility to receive routine follow-up medical care on the injury.  There is no evidence the applicant was found unfit for military service as a result of the injury.

3.  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 applicant’s rights were protected throughout the court-martial process.

4.  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.

5.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency is not appropriate.

6.  The ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for veteran’s benefits.

7.  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.  

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)                                         AR20090007045



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ABCMR Record of Proceedings (cont)                                         AR20090007045



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