BOARD DATE:	  21 September 2011

		DOCKET NUMBER:  AR20110001835 


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 an honorable or a general discharge.

2.  The applicant states he had in excess of 11 years of active military service.  The incident which led to his discharge was a by-product of unknown mental problems which were previously undiscovered, including post-traumatic stress disorder (PTSD) and other untreated injuries.  He is now unable to afford proper treatment and he has been denied just benefits.

3.  The applicant does not provide any additional documents.

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.  With 4 years, 3 months, and 8 days of total prior active serve, the applicant reenlisted in the Regular Army on 29 March 1977 in military occupational specialty (MOS) 95B (military policeman (MP)).  He served in Germany and he was promoted to the rank/grade of sergeant (SGT)/E-5.

3.  On 17 September 1981, the applicant was convicted by a summary court-martial of:

	a.  behaving with disrespect towards his superior commissioned officer, and

	b.  willfully disobeying a lawful command.

4.  He was sentenced to reduction to the rank/grade of specialist four (SP4)/E-4.  The sentence was approved by the convening authority on 25 September 1981.

5.  On 17 December 1981, the applicant was awarded MOS 94B (cook) and his MOS of 95B was withdrawn.

6.  On 21 June 1983, a special court-martial convicted the applicant of:

	a.  being disrespectful in language towards a superior noncommissioned officer (NCO);

	b.  disobeying a lawful order;

	c.  resisting being lawfully apprehended; and

	d.  committing an assault on a female Soldier.

7.  He was sentenced to a BCD, confinement at hard labor for 6 months, forfeiture of pay for 6 months, and reduction to private (PV1)/E-1.  The sentence was approved by the convening authority on 27 September 1983.

8.  On 20 December 1984, the U.S. Army Court of Military Review set aside the action by the convening authority.  On 1 May 1985 the convening authority, in a new action, approved the sentence.

9.  On 5 February 1986, the applicant's court-martial sentence having been affirmed, was ordered to be duly executed.

10.  Accordingly, on 27 March 1986, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, with a BCD as a result of court-martial.
11.  The applicant's available health record does not contain a diagnosis of PTSD or any other mental illness.  The applicant did not provide any supporting evidence for this assertion.

12.  Army Regulation 635-200 governs the policies and procedures 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.

13.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The Board does not upgrade a properly-issued discharge for the purpose of establishing benefits from another agency.

2.  In the applicant's case he was convicted of being disrespectful to both an officer and an NCO, disobeying a lawful command, disobeying a lawful order, resisting lawful apprehension, and assaulting a female Soldier.  Such repeated, serious, and sometimes violent misconduct certainly warranted a BCD.

3.  While the applicant had almost 13 years of active service, he was convicted by a summary and a special court-martial.

4.  There is no evidence that the applicant was ever treated for a mental condition while on active duty.

5.  While the applicant's desire to upgrade his BCD is certainly understandable, he has not provided any independent evidence that would warrant granting either an honorable or a general 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)                                         AR20110001835



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ABCMR Record of Proceedings (cont)                                         AR20110001835



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