IN THE CASE OF:	  

		BOARD DATE:	 8 May 2012 

		DOCKET NUMBER:  AR20110020385 


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, through his Member of Congress, the following:

	a.  upgrade of his bad conduct discharge (BCD) to an honorable discharge;

	b.  entitlement to use his Montgomery GI Bill; and

	c.  any other compensation to which he may be entitled. 

2.  He states he served in the Army with mental problems.  He was diagnosed with bipolar disorder, schizophrenia, Post-Traumatic Stress Disorder (PTSD), hypertension, and multiple psychiatric comorbidity.

3.  He provides two records of hospitalization. 

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.  After having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 30 April 1996 in the grade of private first class/E-3 for the overseas location of Korea.  

3.  As part of his enlistment contract, he completed a DD Form 2366 (Veterans' Educational Assistance Act of 1984 (New GI Bill)).  This form shows he acknowledged that his basic pay would be reduced $100 per month, or the current monthly rate, for each of the first 12 full months of active duty and this basic pay reduction could not be refunded, suspended, or stopped.  He acknowledged he must complete 36 months of active duty service before he was entitled to the current rate of monthly benefits for a period of 36 months.  He also acknowledged that he must receive an honorable discharge for service establishing entitlement to the New GI Bill.

4.  His record contains a copy of Headquarters, 2nd Infantry Division, Special Court-Martial (SPCM) Order Number 15, dated 6 June 1997.  This order shows that on 21 April 1997, subsequent to his pleas, he was found guilty of the following offenses:

* being absent without leave (AWOL) from 5 to 28 March 1997
* resisting apprehension
* assault and battery
* drunk and disorderly conduct
* breaking restriction 

5.  He was sentenced to a BCD, 6 months confinement, and forfeiture of two-thirds of his pay for 6 months.

6.  On 6 June 1997, the Special Court-Martial Convening Authority approved only so much of the sentence that provided for a BCD, 45 days confinement, and forfeiture of $600.00 for three months.  

7.  A copy of the appellate review is not in the available record; however, Headquarters, U.S. Army Field Artillery Center and Fort Sill, SPCM Order Number 37, dated 13 August 1998, shows his sentence was affirmed and the BCD was ordered executed.  The applicant was subsequently reduced to the grade of private/E-1.

8.  Accordingly, on 14 September 1998, he was discharged in the grade of private/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of a court-martial with a BCD.  His total active service is not listed on his DD Form 214.  Also, his total amount of lost time due to AWOL and confinement are not shown.

9.  The applicant provided two records of hospitalization.  These forms show he was admitted on 20 January 2010 and 5 January 2011 for psychiatric-related conditions.  He was diagnosed with depression, suicidal ideation, bipolar disorder, schizophrenia, hypertension, PTSD, alcohol, cocaine and cannabis abuse independence, and psychotic features.  It was recommended that he continue with psychotropic medication and psychotherapy in addition to various other treatments for his disorders. 
 
10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge or a BCD.  It stipulated that a Soldier would be given a BCD 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.

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.  

13.  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's request to have his BCD upgraded to an honorable discharge was carefully considered; however, in the absence of evidence of error or injustice, it does not show merit.

2.  He was properly discharged pursuant to a sentence by a SPCM conviction with no evidence of any violation of his rights.  

3.  Trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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 actions during his assignment to Korea, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case and he is not entitled to either an honorable or general discharge.

5.  The applicant also requested entitlement to use his Montgomery GI Bill and any other compensation due him.  At the time of his enlistment, the applicant accepted the terms of the Montgomery GI Bill Program.  The DD Form 2366 states that his basic pay would be reduced $100 per month, or the current monthly rate, for each of the first 12 full months of active duty and this basic pay reduction could not be refunded, suspended, or stopped.  In addition, he acknowledged he must complete 36 months of active duty service before he was entitled to the current rate of monthly benefits for a period of 36 months.  He also acknowledged that he must receive an honorable discharge for service establishing entitlement to the MGIB.  

6.  His total active service and lost time are not shown on his DD Form 214; however, given his date of entry on active duty which was 30 April 1996 and his date of discharge which was 14 September 1998, it does not appear he completed the required 36 months to receive the Montgomery GI Bill.  In addition, his BCD also made him ineligible to use his Montgomery GI Bill and any other benefits.  



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)                                         AR20110020385





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ABCMR Record of Proceedings (cont)                                         AR20110020385



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