BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100009715 


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 either an honorable or a general discharge.

2.  The applicant states he suffered from post-traumatic stress disorder (PTSD) and depression while on active duty but did not know about these conditions or who to report them to.

3.  The applicant provides medical records from a correctional center.

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 military records show that he enlisted in the Regular Army on 24 July 1984 and was awarded military occupational specialty 16P (air defense artillery chaparral missile crewman).

3.  The applicant accepted nonjudicial punishment (NJP) on three occasions for wrongfully using marijuana and two instances of failing to go at the time prescribed to his appointed place of duty.

4.  On 13 November 1986, a general court-martial convicted the applicant of larceny of car stereo equipment, of a value in excess of $100.00, property of another Soldier; and being absent without leave (AWOL) from his unit from on or about 9 September to on or about 22 September 1986.  His sentence consisted of confinement for 6 months and a BCD.

5.  The convening authority approved only so much of the sentence as provided for a BCD and 87 days confinement.

6.  On 17 April 1987, the United States Army Court of Military Review affirmed the applicant's court-martial findings of guilty and its sentence.

7.  On 11 August 1987, the court-martial sentence having been affirmed, the applicant's BCD was ordered to be executed.  Accordingly, on 14 September 1987, the applicant was discharged with a BCD.

8.  The applicant's medical records do not contain any evidence that he was reported with or treated for any emotional or mental disorder while he served on active duty.

9.  The medical records submitted by the applicant shows he began treatment at a correctional center on 11 February 2009.  He was diagnosed with bipolar disorder, mixed type with psychotic features; generalized anxiety disorder; chronic alcohol abuse and dependence; polysubstance abuse; and PTSD from an accident in the military.

10.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial for stealing from a fellow Soldier and being AWOL.  These are serious offenses which certainly warranted a BCD.

2.  There is no evidence to show that the applicant suffered from PTSD or depression while on active duty.  The fact that he was diagnosed with those conditions over 20 years after his conviction does not establish that he had those conditions while he was on active duty.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20100009715



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         A