IN THE CASE OF:
BOARD DATE: 3 April 2012
DOCKET NUMBER: AR20110018692
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 change of his dishonorable discharge to a medical discharge.
2. The applicant states he should have been medically discharged in accordance with Title 29, U.S. Code, section 701, by reason of physical disability instead of being dishonorably discharged in order to ensure the guarantee of equal opportunity, comprehensive and coordinated programs at vocational rehabilitation, and independent living.
3. The applicant provides his:
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-2 (Insert Sheet to DA Form 2-1 - Record of Court-Martial Convictions)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army in Columbus, OH on 20 November 1980 for a period of 3 years, training as a chemical operations specialist, and assignment to Fort Carson, CO.
2. He completed his basic training at Fort Knox, KY and his advanced individual training at Fort McClellan, AL before being transferred to Fort Carson. He was advanced to the pay grade of E-3 on 1 October 1981.
3. On 22 February 1982, he was convicted pursuant to his pleas of aggravated assault on two female Soldiers. He was sentenced to confinement at hard labor for 57 months, a forfeiture of $200.00 pay per month for 54 months, reduction to the pay grade of E-1, and a Dishonorable Discharge. However, the convening authority suspended that portion of confinement at hard labor in excess of
48 months and his forfeiture of pay in excess of 48 months for a period of
12 months with provisions for automatic remission.
4. The applicant was transferred to the U.S. Disciplinary Barracks (USDB) at Fort Leavenworth, KS to serve his confinement.
5. On 21 December 1982, the U.S. Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
6. On 18 May 1983, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 1 year and 5 days of creditable active service and 540 days of time lost due to confinement.
7. During the separation processing the applicant declined a separation medical/physical examination and he indicated that he had no service-connected disabilities.
8. 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.
9. Title 10, U.S. Code, chapter 61 (Retirement or Separation for Physical Disability) provides for the retirement and discharge of members of the Armed Forces who incur a physical disability in the line of duty while serving on active or inactive duty. However, the disability must have been the proximate result of performing military duty.
DISCUSSION AND CONCLUSIONS:
1. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted. Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
2. The applicants contentions have been noted. However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offense. Accordingly, his punishment was not disproportionate to the offense for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.
3. 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 nature of the applicant's misconduct and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for employment or additional benefits. As a result, clemency is not warranted in this case.
4. The applicants official record shows no evidence of a medical disability that would have warranted a discharge for medical reasons and the applicant signed a statement to that effect when he declined a separation medical/physical examination.
5. Therefore, given the available evidence in this case, there appears to be an insufficient evidentiary basis for granting the applicant's requested 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 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) AR20110018692
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ABCMR Record of Proceedings (cont) AR20110018692
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