IN THE CASE OF:	  

		BOARD DATE:	    24 April 2012

		DOCKET NUMBER:  AR20110019462 


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, in effect, reconsideration of his request for an upgrade of his bad conduct discharge (BCD) to an honorable discharge.

2.  The applicant states he was a cadet at the U.S. Military Academy (USMA), West Point, NY from 1 July 1964 to 30 April 196, a period of service for which he received an honorable discharge following approval of his voluntary resignation.  He was then transferred to the U.S. Army Reserve (USAR) and ordered to active duty.  He served an additional period of 4 months and 8 days of honorable active service prior to being placed in detention for approximately 
18 months.  He contends his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 February 1969 seems to imply that his previous period of honorable service at the USMA was also "other than honorable," which is not the case.

3.  The applicant further states it recently came to his attention that he suffered a mild traumatic brain injury (MTBI) in a soccer accident while serving as a cadet at the USMA.  This MTBI changed his behavior and attitude for the worse and resulted in his voluntary resignation from the USMA.  The behavior persisted and manifested itself as depression and irrational behavior which resulted in the actions that led to his detention at Fort Leavenworth, KS.  At the time of the injury, the medical evaluation apparently missed or was unaware of MTBI and that he could have been treated for this condition, which could have prevented the series of incidents which resulted in his detention and BCD.  Had he been diagnosed with MTBI he could have been issued an honorable discharge for medical reasons or allowed to convalesce for a period of time to recover from the injury and then return to his cadet duties at the USMA.  He concludes that he did eventually heal and has led an exemplary life and career since his detention at Fort Leavenworth.

4.  The applicant provides:

* a 6-page personal affidavit
* 28 pages extracted from his USMA medical record
* a 3-page affidavit rendered by his parents
* a 2-page affidavit rendered by his brother
* a 3-page affidavit rendered by a former fellow USMA cadet
* 3 character reference letters rendered by acquaintances
* his 12-page résumé
* a letter of commendation rendered by a member of the USMA cadre
* 2 DD Forms 214

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC87-06604, on 23 March 1988.

2.  In his initial request to the ABCMR, the applicant claimed he was an alcoholic at the time he served as both a cadet and an enlisted Soldier and he attributed his attitude and behavior to this condition.  He concluded that had his condition been recognized and properly treated the incidents which led to his resignation from the USMA, detention, and BCD could have been avoided.  The applicant now provides a new argument that an MTBI that he suffered while playing soccer at the USMA was the catalyst for his shift in attitude and behavior.  This argument was not previously considered by the ABCMR.  Therefore, it is considered a new argument and as such warrants consideration by the Board.

3.  The applicant's record contains (and he also provides) a Standard Form (SF) 88 (Report of Medical Examination) which shows he underwent a pre-admission medical examination on 4 March 1964 in order to determine whether he was medically qualified for admittance to the USMA.  The examining physician noted the applicant had a 1.5 centimeter, flat, smooth, hairless area resembling an old scar in his right temporal area, but the applicant claimed it had been present since birth.  

4.  The applicant's record shows he was appointed as a cadet at the USMA on 1 July 1964 and incurred a 6-year service obligation from his date of entrance into the USMA.

5.  The applicant provides an SF 600 (Chronological Record of Medical Care) which shows he sustained a one centimeter laceration to his left eyelid while playing soccer on 28 September 1966.  On the same date, he was treated at in the emergency room of the U.S. Army hospital located at the USMA where the laceration was sutured.  There is no indication that this injury required any follow-up visits or treatment.

6.  On 13 March 1967, the applicant submitted a voluntary request for resignation from the USMA to his chain of command.  On the same date, he rendered a letter addressed to the Commandant, U.S. Corps of Cadets, USMA, Subject:  Service Obligation.  In this letter, the applicant indicated he understood he incurred a 6-year service obligation on the date of entrance into the USMA and that on the effective date of his separation from the USMA, he understood that he would be assigned to the USAR in an appropriate enlisted grade for completion of his service obligation which could include active duty training and/or he may be ordered to active duty in an enlisted grade for a period not to exceed 4 years.

7.  In conjunction with his request, he underwent both a medical examination and a psychiatric evaluation, both of which determined he had no significant conditions and he was cleared for resignation.  

	a.  His record contains (and he also provides) an SF 89 (Report of Medical History), dated 14 March 1967, whereon he indicated he was in excellent health at the time.  He also indicated he had never suffered from:  frequent or severe headaches, dizziness or fainting spells, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, any drug or narcotic habit, or excessive drinking habit.  The applicant also indicated he had never been a patient in a mental hospital or sanatorium, had any illness or injury other than those noted on the form, or consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years.  The examining physician noted the applicant had suffered from epistaxis (nose bleeds) resulting from nose injuries 2 years prior.  He was treated with cauterization and had not experienced any trouble since then.

	b.  His record contains (and he also provides) an SF 88, dated 14 March 1967, wherein the examining physician indicated the applicant had a 
2 centimeter scar in the right temporal area of his head.  Otherwise, the physician indicated normal findings for the applicant regarding his head, face, neck, and scalp; neurologic condition, and psychiatric condition.  The physician did not note any significant or interval history, defects, or diagnoses.

8.  The applicant's chain of command recommended approval of his request for resignation with transfer to the USAR and immediate orders to active duty for a period of 2 years in the rank/grade of private first class/E-3.  On 10 April 1967, The Adjutant General of the Army approved the applicant's resignation, transfer to the USAR, and immediate order to active duty.

9.  The applicant was separated from the U.S. Corps of Cadets on 30 April 1967 and transferred to the USAR effective 1 May 1967.  The DD Form 214 issued to him at the time shows he had completed 2 years, 10 months, and 1 day of active service as a cadet and his service was characterized as honorable.

10.  On 5 June 1967, he was ordered to active duty in the rank/grade of private first class/E-3 for a period of 24 months.

11.  The applicant's DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) - Record of Court-Martial Conviction) shows he was convicted by a general court-martial of violating Articles 91, 121, 130, and 134 of the Uniform Code for Military Justice (UCMJ) by:

* wrongfully communicating a threat towards a noncommissioned officer (NCO)
* being disrespectful in language towards an NCO
* two specifications of stealing property in excess of $50 in value
* two specifications of unlawfully entering a building with the intent to commit larceny

12.  The following sentence was adjudged on 6 June 1968 and approved on 27 June 1968:

* reduction to private (PV1)/E-1
* confinement at hard labor for 1 year
* a forfeiture of all pay and allowances
* a dishonorable discharge from the service

13.  The U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.


14.  On 27 October 1967, the applicant underwent a psychiatric examination in conjunction with the Mental Health Stockade Program.  After considering his personal history and his mental status at the time, he was diagnosed with:  passive aggressive reaction, chronic, moderate, manifested by stubbornness, procrastination, inefficiency, poor judgment, passive obstruction, and mild stress, with moderate impairment for further military duty.  The examining psychiatrist opined the applicant was free from mental defect, disease, or derangement and he was able to distinguish between right and wrong and to adhere to the right.  The applicant was mentally responsible and had the capacity to participate in and understand the nature of board and judicial proceedings, and to cooperate in his own defense.  In closing, the psychiatrist determined the applicant was cleared psychiatrically for action deemed appropriate by his command.

15.  On 7 October 1968, he underwent a physical medical examination in conjunction with his pending punitive discharge:

	a.  His record contains an SF 89 (Report of Medical History), dated 14 March 1967, wherein he indicated he was in good health at the time.  He also indicated he had never suffered from:  frequent or severe headache, dizziness or fainting spells, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, any drug or narcotic habit, or excessive drinking habit.  The applicant also indicated he had never been a patient in a mental hospital or sanatorium, had any illness or injury other than those noted on the form, or consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years.  The applicant noted he had received stitching of an eyelid at the age of 20.

	b.  His record contains an SF 88, dated 14 March 1967, wherein the examining physician indicated normal findings for the applicant regarding his head, face, neck, and scalp; neurologic condition, and psychiatric condition.  The physician did not note any significant or interval history, defects, or diagnoses.

16.  A letter from the Office of The Adjutant General (TAGO), dated 23 January 1969, shows the appropriate authority ordered that the applicant's dishonorable discharge as initially promulgated in General Court-Martial Order (GCMO) Number 38, dated 27 June 1968, and ordered into execution by GCMO Number 154, dated 26 September 1968, be changed to a BCD and directed that he be issued a BCD Certificate (DD Form 259A) covering the period from his entry into service on the current enlistment.  



17.  His DD Form 214 shows he was discharged on 24 February 1969 under the authority of GCMO Number 154, dated 26 September 1968, as modified by TAGO letter, dated 23 January 1969, as a result of court-martial.  This form also shows his character of service as "Under Conditions Other Than Honorable."

18.  The applicant provides affidavits and letters rendered by himself, his parents, his brother, a former fellow USMA cadet, three acquaintances, and a letter of commendation rendered by a member of the USMA cadre.  The gist of this correspondence conveys the authors' opinions that the applicant is a man of strong moral character and a productive member of society who, at one time, had a very bright future ahead of him.  He was a stellar student and had aspirations to retire following a career as an Army officer.  For inexplicable reasons, the applicant's attitude and behavior changed for the worse and ultimately led to the events which resulted in his BCD.  His family members attribute this shift in his attitude and behavior to his sports injury.

19.  References:

	a.  Army Regulation 635-200 (Personnel Separations – 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.

	b.  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.

	c.  Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

20.  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 fact that the applicant sustained a minor head injury while playing soccer is duly noted.  The applicant's record is void of any evidence and he has not provided any evidence that shows his head injury required any additional medical attention or contributed to his misconduct in any manner.  Therefore, it is not sufficiently mitigating to absolve his misconduct during the remainder of his service.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

4.  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 to amend the decision of the ABCMR set forth in Docket Number AC87-06604, dated 23 March 1988.




      __________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)                                         AR20110019462



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ABCMR Record of Proceedings (cont)                                         AR20110019462



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