BOARD DATE:	13 December 2011

		DOCKET NUMBER:  AR20110011428


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.

2.  The applicant states:

* the underlying medical causes of his behavior that resulted in his trial by court-martial were not fully investigated
* he suffered from manic-depression and bi-polar disorder
* alcohol, depression, and separation from family in a foreign country were contributing factors that led to a breakdown in his judgment 
* he was led to believe his bank would look out for him since his pay was directly deposited into his account
* instead he accrued insufficient funds charges, which eventually led to his trial by court-martial for his numerous offenses

3.  The applicant provides no additional evidence.

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 6 May 1981.  He completed training and was awarded military occupational specialty 82C (Field Artillery Surveyor).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  At a general court-martial at Wuerzburg, Germany, he pled guilty to multiple specifications of multiple charges as follows:

* one specification of charge 1 – larceny on or about 5 February 1982
* one specification of charge 2 – forgery on or about 5 February 1982 
* one specification of additional charge 1 – being absent without leave from on or about 5 to 15 April 1982
* 16 specifications of additional charge 2 – wrongfully and unlawfully making and uttering checks with insufficient funds (Article 123a)

4.  Prior to entering his pleas, the military judge dismissed the second specification of additional charge 1 – failing to go at the prescribed time to his appointed place of duty on 28 May 1982.

5.  On 5 August 1982, the court found him guilty of all remaining charges and specifications and sentenced him to a bad conduct discharge, confinement at hard labor for 12 months, and forfeiture of $300.00 pay per month for 12 months.

6.  On 19 October 1982, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed.  The applicant was remanded for confinement at the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

7.  On 1 April 1983, the remaining sentence to confinement was suspended until 1 October 1983 with a provision for automatic remission.

8.  On an unknown date in 1983, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  On 18 November 1983, the U.S. Court of Military Appeals denied his petition for review.

9.  General Court-Martial Order Number 535, Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, dated 5 December 1983, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge was ordered executed.

10.  On 16 December 1983, he was discharged in accordance with the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 1 year, 11 months, and 4 days of net active service during this period.  This form further shows he was discharged with a bad conduct character of service and his discharge resulted from his trial by court-martial.

11.  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.

12.  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.

13.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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 applicant was given a bad conduct discharge pursuant to an approved sentence of a general court-martial which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

2.  The applicant did not provide evidence that any medical or mental issues contributed to his misconduct.  His records do not contain evidence of medical or mental issues that would have contributed to or caused his misconduct.  Furthermore, those issues should and would have been addressed during the court-martial process.

3.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  In view of the foregoing, there is insufficient basis to grant 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 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)                                         AR20090019040



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110011428



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1