IN THE CASE OF:	 

		BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090016030


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 to a general discharge.

2.  The applicant states that he developed a major depression disorder with psychosis during his military service and that his military occupational specialty (MOS) caused him daily stress.

3.  The applicant provides a copy of his Department of Veterans Affairs (DVA) Rating Decision, dated 9 July 2009.

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 he enlisted in the Regular Army for a period of 4 years on 12 September 1986.  He completed basic combat and advanced individual training and he was awarded MOS 63B (Light Wheel Vehicle Mechanic).

3.  His records also show he served at Fort Polk, LA, in his MOS from March 1987 to October 1990, during which he executed a 4-year reenlistment on 2 February 1990 and he was promoted to sergeant (SGT)/E-5 on 1 July 1990.  He subsequently served in Alaska from 1 November 1990 to 18 January 1994.

4.  His records also show he was awarded the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle and Grenade Bars, and the Driver and Mechanic Badge with Mechanic Bar.

5.  On 14 December 1993, at Fort Wainwright, AK, he pled not guilty at a general court-martial to one specification of indecent assault upon a woman, not his wife, on or about 26 July 1993; and to one specification of committing an assault with a dangerous weapon on or about 26 July 1993.  He was found guilty of both specifications and sentenced to a reduction to private (PV1)/E-1, a forfeiture of $250.00 pay per month for 9 months, confinement for 9 months, and a bad conduct discharge.

6.  On 22 February 1994, the convening authority approved the sentence and, except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On 13 September 1994, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 75, dated 23 June 1995, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

9.  He was discharged from the Army on 7 August 1995.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, with a 

bad conduct discharge.  This form further shows he completed a total of 8 years, 3 months, and 16 days of creditable military service and he had 220 days of time lost.

10.  The applicant's medical records were not available for the review with this case.  However, he submitted a copy of his DVA rating decision, dated 9 July 2009, that shows he was awarded service-connected disability compensation for a major depressive disorder with psychosis.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the policy for the separation of enlisted personnel.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his bad conduct discharge be upgraded to a general discharge.

2.  The evidence of record shows his trial by a general 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 discharge appropriately characterized the misconduct for which he 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.

3.  Although his DVA rating decision indicates some service connection for major depressive disorder, there are no available medical records and the applicant did not provide any evidence that show he suffered from a major depressive disorder 

or that he addressed such issue with military medical personnel, or that he was diagnosed with such disorder by Army medical personnel.  Although the applicant provides evidence of service-connected mental issues, he has not provided any evidence to relate his mental condition to his misconduct.

4.  Contrary to his argument that his MOS caused him daily stress, the evidence of record shows he served at Fort Polk, he was promoted to SGT, he reenlisted, he received multiple awards, and he was reassigned to Alaska where he went on to complete 3 years and 2 months of his service there.  There is no indication of any undue stress related to his service.

5.  He failed to establish or demonstrate any connection between his subsequently-diagnosed DVA condition and his misconduct.  After a review of the applicant’s record of service, it is clear that his service did not meet the criteria for a general discharge.  As a result, there is insufficient basis to upgrade his discharge to a general 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)                                         AR20090016030



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ABCMR Record of Proceedings (cont)                                         AR20090016030



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