BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100008082 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge. 

2.  The applicant states he was suffering from a mental illness at the time of his offenses.  This has been certified by a forensic psychiatrist. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 April 1982; and a copy of his Forensic Psychiatry Evaluation Report, dated 3 September 2004.

CONSIDERATION OF EVIDENCE:

1.  The Army Board for Correction of Military Records (ABCMR) previously considered the applicant's case in Docket Number AC90-10592 on 24 April 1991. That case is not available and the current case is reviewed de novo. 

2.  The applicant submitted a copy of a Forensic Psychiatry Evaluation Report, which was not previously reviewed by the ABCMR; therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  The applicant's records show he enlisted in the Regular Army for a period of 2 years on 20 June 1975 and held military occupational specialty 63F (Recovery Vehicle Operator).  His records also show he executed two 3-year reenlistments on 26 May 1977 and 28 February 1980.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.  
4.  The applicant's records show he served in Germany from 17 December 1975 to 10 June 1977 and twice in Korea from 12 July 1977 to 5 July 1979 and 23 May 1980 to 30 September 1980.  

5.  His records also show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 28 June 1979, for breaking restriction and failing to obey a lawful general order
* On 16 May 1980, for disobeying a lawful order
* On 28 August 1980, for being absent without leave (AWOL)

6.  His records further reveal an extensive history of being AWOL and/or in confinement as follows:

* On or about 30 September to 1 October 1978
* On or about 18 December to 19 December 1978
* On or about 15 September to 18 September 1980
* On or about 20 September to 23 September 1980
* On or about 30 September to 1 October 1980
* On or about 7 October to 9 October 1980
* On or about 9 October to 11 October 1980

7.  On 22 December 1980, he was convicted by a general court-martial of two specifications of being AWOL; one specification of failing to go at the time prescribed to his appointed place of duty; one specification of offering violence against a commissioned officer; one specification of willfully disobeying a lawful order; one specification of violating a general regulation by wrongfully purchasing exchange merchandise in quantities exceeding limitations; one specification of escaping from a lawful custody; one specification of unlawfully entering an open mess office compound; and one specification of larceny.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement at hard labor for 2 years, and a dishonorable discharge.

8.  On 6 March 1981, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 24 months, total forfeiture of pay and allowances, and reduction to E-1, and except for that part of the sentence extending to a bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 

9.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.
10.  On 27 October 1981, he petitioned the U.S. Court of Military Appeals.  However, the disposition of this petition is not available for review with this case.

11.  Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 138, dated 22 February 1982, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

12.  He was discharged on 21 April 1982.  The DD Form 214 he was issued shows he was discharged in accordance with chapter 11 of Army Regulation 635-200 (Personnel Separations) as a result of court-martial with a bad conduct discharge.  This form further shows the applicant completed a total of 5 years, 1 month, and 13 days of creditable military service and he had 564 days of lost time.

13.  The applicant's forensic psychiatry evaluation report, dated 3 September 2004, shows that a civilian forensic psychiatrist opined that the applicant was actively suffering from psychiatric symptoms consistent with thought disorder that negatively impacted his ability to function in the military and impacted his actions culminating in his court-martial, imprisonment, and bad conduct discharge.  He believes the applicant was suffering from a "Schizoaffective Disorder: Bipolar Type" and "Polysubstance Abuse."  Relevant statements include:

* It is likely his current psychiatric disorder is more severe than was evident while he was in Korea (page 3, paragraph 3) 
* He experienced clinical psychiatric symptoms that impaired him to the extent he was not able to be compliant with rules and regulations necessary to be an obedient Soldier (page 3, paragraph 4)
* Applicant reported that he is currently being treated for Bipolar Affective Disorder and Paranoid Schizophrenia (page 5, paragraph "Psychiatric" first sentence)
* Applicant most likely had a diagnosable mental disorder, deserving and requiring treatment, at the time of his military offenses.  It is likely the psychiatric disorder negatively impacted and majorly contributed to his errant actions (page 8 last paragraph before “Qualifications of the Examiner)

14.  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.

15.  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.

16.  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 evidence of record shows the applicant served through an enlistment and two reenlistments, in various positions, within and outside of the continental United States, and attained the rank/grade of SGT/E-5, without displaying any mental conditions.  Nowhere in his records does it show he suffered from a mental, psychological, or medical condition that led to his extensive history of misconduct.  There is no evidence in his records and he did not provide any substantiating evidence that shows his misconduct was a result of a mental condition.

2.  The forensic psychiatrist examined the applicant some 24 years after he received the court-martial.  In his report, the psychiatrist provides a psychiatric diagnosis "Schizoaffective Disorder: Bipolar Type" and "Polysubstance Abuse."  However, the psychiatrist does not specify the nature of "the offense."  The psychiatrist states in the report that the applicant was referred to him for a forensic psychiatry opinion regarding the issue of his mental state while serving in the Army in Korea in or around 1980.  

3.  The forensic psychiatric evaluation appears to be mostly a regurgitation of what the applicant reported to the examiner.  The psychiatrist had no independent sources to support any conclusions.  The determination that the applicant "most likely had a diagnosable mental disorder" at the time of his offenses and discharge is not supported by any reliable data.  The psychiatrist's conclusions regarding the applicant’s mental health while in the Army are insufficient to establish that the applicant suffered from a mental disease or defect forming the basis for the defense of a lack of mental responsibility. 

4.  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 laws and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

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)                                         AR20100008082



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)