BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007158 


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 his bad conduct discharge be upgraded to a medical discharge.

2.  The applicant states he is having problems like he did when he was in the Army when he was offered a medical discharge because of his nerves.  He needs help because dying does not mean anything to him; he was trained to die and that is easy.  Even his sister knows that he can go off at any time.  He has been in bar fights a lot and if the Board heard his story, it would understand.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 3 years on 18 May 1964 and held military occupational specialty 11B (Light Weapons Infantryman).

3.  On 18 June 1964, while still in training, he pled guilty at a special court-martial to one specification of being absent without leave (AWOL) from on or about 24 May 1964 to on or about 2 June 1964.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of $52.00 pay per month for 3 months.

4.  On 22 June 1964, the convening authority approved his sentence, but suspended the confinement for a period of 6 months.

5.  On 21 September 1964, he again departed his unit in an AWOL status, but he returned to military control on 24 September 1964.

6.  On 26 September 1964, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for his AWOL.  His punishment consisted of a forfeiture of $35.00 pay per month for 2 months and 45 days of restriction and extra duty.

7.  On 2 October 1964, the convening authority vacated the suspension of the unexecuted portion of his sentence to confinement at hard labor for 3 months and ordered it executed.  However, on 20 October 1964, the convening authority suspended the unexecuted portion of the sentence for 3 months effective 21 October 1964 at which time, unless the suspension was sooner vacated, the unexecuted portion would be remitted.

8.  On 8 July 1965, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL on 7 July 1965.  His punishment consisted of an oral reprimand and 14 days of restriction and extra duty.

9.  On 19 April 1966, subsequent to a series of AWOL's, he underwent a neuropsychiatric evaluation at the Fort Jackson, SC, stockade and he was diagnosed with a severe, chronic emotionally unstable personality manifested by a long history of impulsive outbursts and poor interpersonal relations.  His condition was determined to have existed prior to service (EPTS) and was not in the line of duty.  The military psychiatrist recommended his administrative separation and remarked that the applicant:

* at the time of his alleged offenses was free from emotional disease, defect, or derangement as to be able to differentiate right from wrong and adhere to the right
* had no condition to warrant disposition under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)

10.  On 26 April 1966, he pled guilty at a general court-martial to one specification of being AWOL from on or about 13 December 1965 to on or about 17 February 1966, one specification of disrespecting a commissioned officer on or about 18 March 1966, one specification of disobeying a lawful order on or about 18 March 1966, and one specification of escaping from lawful confinement on or about 7 March 1966.  The court sentenced him to a dishonorable discharge, a forfeiture of all pay and allowances, confinement at hard labor for 12 months, and a reduction to private (PV1)/E-1.

11.  During the trial, the Staff Judge Advocate's review of the evidence indicated the applicant testified that he had always been nervous and almost always stayed home.  He joined the Army on a dare and was sent overseas.  As his mother was ill, he was sent back home where he had a complete nervous breakdown.  He was admitted to the Naval Air Station, Jacksonville, FL, and was subsequently transferred to the Walter Reed Army Medical Center.  He also testified that upon his discharge from the hospital, he was told he would be getting a medical discharge which would be mailed to him.

12.  On 6 May 1966, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 9 months, and reduction to PV1/E-1; and except for the bad conduct discharge, he ordered the sentence executed and the record of trial be forwarded to The Judge Advocate General of the Army for appellate review.  Pending completion of the appellate review, the applicant was confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.

13.  On 19 July 1966, the U.S. Army Board of Review found the findings of guilty were correct in law and fact.  The board further found the approved sentence was correct in law and in reassessing the sentence on the basis of the entire record, the Board determined that only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 6 months, and reduction to PV1/E-1 should be approved.  The board affirmed the findings of guilty and the modified sentence.

14.  Headquarters, Fort Leavenworth, KS, General Court-Martial Order Number 600, dated 20 September 1966, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

15.  On 24 September 1966, he underwent a physical examination at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  The military physician noted that he was fit for duty and medically qualified for discharge.

16.  He was discharged from the Army on 28 September 1966.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge) as a result of court-martial with an under other than honorable conditions discharge and he was issued a Bad Conduct Discharge Certificate.  This form further shows he completed 1 year, 7 months, and 22 days of creditable military service.  He also had 260 days of lost time.

17.  Army Regulation 635-204 then in effect set forth the basic authority for the separation of enlisted personnel as a result of court-martial.  It stated that an enlisted person would be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial imposing dishonorable discharge.  The appellate review must be completed and the affirmed sentences ordered duty executed.  An enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

18.  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.

19.  Army Regulation 635-200 (Personnel 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.

20.  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.

21.  Army Regulation 635-40 establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating.  It provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) which governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.

22.  Army Regulation 635-40 states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service.  Examples are congenital malformations and hereditary conditions or similar conditions in which medical authorities are in such consistent and universal agreement as to their cause and time of origin that no additional confirmation is needed to support the conclusion that they were EPTS.  This regulation also states, in pertinent part, that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to a medical discharge.

2.  The evidence of record shows he was tried and convicted for various serious offenses.  His trial by a general court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Based on his overall record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

3.  Prior to his conviction for a series of offenses, he underwent a psychiatric evaluation at the post stockade where he was diagnosed with a severe, chronic emotionally unstable personality manifested by a long history of impulsive outbursts and poor interpersonal relations.  His condition was determined to be EPTS and not in the line of duty.  The military psychiatrist remarked that the applicant had no condition to warrant disposition under the provisions of Army Regulation 635-40.  Further, since he was charged with offenses for which he could be given a punitive discharge, he was not eligible for disability processing.

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 failed to submit evidence that would satisfy this requirement.  He has not shown error, injustice, or inequity for the relief he requests.  Therefore, he is not entitled to any 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)                                         AR20100007158



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)