IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100011568 


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 an upgrade of his bad conduct discharge to a general discharge.

2.  The applicant states, in pertinent part, that it has been 27 years since his discharge from active duty.  He states he admitted his guilt, confessed, and then spent 18 months in confinement.  Additionally, he states in 1989 he was medically diagnosed and treated for schizophrenia and now he believes his bad behavior on active duty was the result of this undiagnosed illness.  He concludes by stating his bad conduct was very common amongst his peers with some charged and others not charged.  Based on his good behavior and training as a certified nurse assistant his discharge should be upgraded.  

3.  The applicant provides two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a discharge date of 18 May 1983. 

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 enlisted in the Regular Army on 24 October 1978.  He completed his initial entry training and was awarded military occupational specialty 64C (Motor Transport Operator).  He served satisfactorily for 3 years and reenlisted on 25 November 1981 for an additional 3-year period.  The highest rank he attained was specialist four/pay grade E-4.  He was assigned to the 8th Support and Transportation Battalion, 8th Infantry Division with duty in U.S. Army – Europe in the Federal Republic of Germany.  

3.  The applicant's records are devoid of documents showing acts of valor or significant achievements.

4.  The applicant's available military medical records show he was seen on 26 November 1979 at the Troop Medical Clinic in Kitzingen, Federal Republic of Germany for stress related to pressures involving job anxiety.  The treating clinician stated the applicant appeared apprehensive and had feelings of hopelessness concerning his job situation.  The clinician concluded the applicant had situational anxiety with agitation and possible depression.  He referred the applicant to the behavioral health clinic.  The applicant was seen at the behavioral health clinic and medical notes indicate the applicant was to follow up with the staff at the behavioral health care clinic.  His medical records are void of a diagnosis of mental illness.  

5.  The available evidence shows that on 21 July 1981 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for possession of marijuana.  

6.  On 8 July 1982, the applicant was convicted by a general court-martial at Bad Kreuznach, Germany, under the authority of Headquarters, 8th Infantry Division, for: 

	a.  one specification of violating a lawful general regulation by crossing the Netherlands and Federal Republic of Germany border on 3 December 1981 without a DA Form 31 (Leave) in his possession;

	b.  two specifications of wrongfully possessing marijuana in the hashish form on 3 December 1981 and on 20 January 1982; 

	c.  one specification of wrongfully selling marijuana in the hashish form on or about 20 January 1982; 
	d.  one specification of wrongfully transferring marijuana in the hashish form on 20 January 1982;

	e.  one specification of wrongfully possessing a cloth bag containing marijuana residue; and

	f.  two specifications of being absent without leave (AWOL).  

7.  The general court-martial sentence reduced the applicant to private/pay 
grade E-1, ordered a forfeiture of all pay and allowances, confined him to hard labor for 3 years, and ordered a bad conduct discharge.

8.  On 6 October 1982, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and confinement at hard labor for 2 years.  

9.  The Commandant of the U.S. Disciplinary Barracks at Fort Leavenworth, KS, suspended $275.00 pay per month of the applicant's forfeitures on 26 November 1982.

10.  The U.S. Army Court of Military Review affirmed the applicant's findings of guilty and his sentence.  On 9 May 1983 the general court-martial convening authority ordered the applicant's bad conduct discharge executed.

11.  On 18 May 1993, the applicant was discharged accordingly.  His net active service for this period was 5 months and 11 days and he was credited with time lost from 30 April to 3 May 1982, 8 May to 25 May 1982, and 28 May 1982 to 18 May 1983.

12.  On 26 January 1984, prior to release from the Correctional Holding Detachment, the applicant declined a separation physical examination.

13.  References:

	a.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.
	b.  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.

	c.  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 records are 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 his bad conduct discharge should be upgraded to a general discharge based on the passage of time, his certification as a nurse assistant since his discharge, and his medical diagnosis of schizophrenia.  

2.  While the applicant's nurse assistant certification is commendable, this certification alone is not sufficient to warrant the upgrade of a properly-issued discharge nor does the passage of time allow for a discharge upgrade.  

3.  The applicant was diagnosed with schizophrenia after he was separated; his military medical records are void of such a diagnosis.  His records do show he sought medical assistance for job-related stress anxiety in 1979.  

4.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  Court-martial convictions and sentences are unique to each offender and are based upon the independent and individualized circumstances of the case.

5.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or significant achievement that would warrant special recognition.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade his discharge.
6.  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.

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)                                         AR20100011568



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ABCMR Record of Proceedings (cont)                                         AR20100011568



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