IN THE CASE OF:	 

		BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110020627 


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, the widow of a deceased former service member (FSM), requests upgrade of her husband’s bad conduct discharge (BCD).

2.  The applicant states:

* she would like her husband buried at the Roseburg National Cemetery
* the FSM received an honorable discharge from the U.S. Marine Corps on 8 September 1981
* the FSM chose to join the U.S. Army after the U.S. Marine Corps because he wanted to be a pilot and the Army promised he would go to flight school
* the FSM was tested after he joined the Army and he was told he was color blind
* the FSM obtained his driver’s and commercial’s licenses and he was never told he was color blind
* the FSM was devastatingly disappointed and he acted out by drinking and because of Post Traumatic Stress Disorder (PTSD)

3.  The applicant provides:

* the FSM's death certificate
* two Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim)
* A VA PTSD Questionnaire
* five character references
CONSIDERATION OF EVIDENCE:

1.  The FSM completed prior service in the U.S. Marine Corps Reserve and he enlisted in the Regular Army on 19 October 1982.  He completed training and he was awarded military occupational specialty (MOS) 13E (cannon fire direction specialist).

2.  His service record includes an OSA Form 172 (Case Report and Directive) that indicates he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 1 April and 13 September 1983.  However, the specific offenses are not listed and the Article 15 proceedings are not contained in the available records.

3.  Block 21 (Time Lost) of his DA Form 2-1 (Personnel Qualification Record – Part II) indicates he was absent without leave (AWOL) on 14 September 1983.

4.  On 20 October 1983, pursuant to his plea of guilty, he was convicted by a special court-martial of stealing a 1979 Honda CR 250 motorcycle, of a value of about $900.00, the property of a sergeant.  He was sentenced to forfeiture of $382.00 pay per month for 3 months, confinement at hard labor for 75 days, and to be discharged from the service with a BCD.

5.  On 15 November 1983, the court-martial convening authority approved the sentence.  The forfeitures were applied to all pay and allowances becoming due on and after the date of this action.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.

6.  On 16 December 1983, the unexecuted portion of the sentence to confinement for 75 days was remitted.

7.  On 27 February 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

8.  Special Court-Martial Order Number 89, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 25 July 1984, ordered the BCD to be duly executed.

9.  On 23 August 1984, the FSM was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  He completed 1 year, 7 months, and 22 days of net active service this period with 74 days of time lost.

10.  On 20 June 1990, the Army Discharge Review Board denied the FSM’s request for an upgrade of his discharge and change to his narrative reason for separation.

11.  The applicant provided a VA PTSD Questionnaire completed by the FSM on 18 January 2006.  He indicated:

* he had not received treatment for PTSD 
* he had not been diagnosed with PTSD
* he had a personality conflict with his immediate supervisor in the U.S. Army
* his court-martial attorney advised him not to admit he was intoxicated at the time of the alleged crime
* his court-martial attorney advised him to admit to a crime he did not remember committing because of substance abuse

12.  The applicant provided five character references from friends and family.

	a.  C------ M----- (friend), stated he had known the FSM since elementary school (1971) and they were very close friends.  The FSM was pro-military and he was excited about joining the U.S. Marine Corps and attending college.  The FSM was an honest man with a great sense of wonderment for the world and he had great respect for him.  He had never known the FSM to steal or do anything to intentionally cause harm to anyone or anything.

	b.  C---- J. M----(friend), states she had known the FSM since he was born.  The FSM was a fun-loving man who enjoyed spending time with his family.  He was a member of the Junior Reserve Officers’ Training Corps (JROTC) in high school and he was never in any trouble.  He graduated from college and he was honorably discharged from the U.S. Marine Corps.  The FSM joined the Army where he had a problem and he was discharged with a BCD.  The FSM deserves to be treated with honor and he should be allowed to be buried within the VA Cemetery.  

	c.  C------ K----- (step-grandfather), states the FSM desired to be a Marine since he was a youngster.  The FSM joined the JROTC program in high school, in which he excelled and quickly gained rank.  He enrolled in Oregon State University and in the ROTC program.  The FSM joined the U.S. Marines after college.  He is also a veteran and the FSM’s grandmother is buried in the Roseburg National Cemetery.



	d.  L---- J---- (mother), states the FSM was a very honorable person and he had great respect for his family, friends, and the military.  The FSM was a committed military person and he deserves to be buried at the Roseburg National Cemetery.

	e.  D------ W------ (widow), states the FSM was passionate about the U.S. Marine Corps and he later joined the Army because he wanted to attend flight school.  Although the FSM experienced problems in the Army, he was an honest man who loved his country and he would have died serving his country.  

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  Paragraph 3-11 states that a Soldier will be given a BCD 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.

	b.  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.  

   c.  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 Army Board for Correction of Military Records 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 desire to have the FSM buried at the Roseburg National Cemetery is acknowledged.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.

2.  The FSM’s prior honorable service in the U.S. Marine Corps is commendable.  However, his Army service record shows he received two Article 15s, he was AWOL on one occasion, and he was convicted by a special court-martial.

3.  The FSM’s service record is void of medical documentation that indicates he was diagnosed as color blind while in the Army or that this condition prevented him from attending flight school or that he was promised flight school.

4.  Although the applicant contends the FSM’s misconduct was due to alcohol and PTSD, no evidence shows he was diagnosed with alcohol abuse or PTSD prior to his discharge.  The VA PTSD Questionnaire was completed by the FSM subsequent his service on active duty.

5.  The FSM’s trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

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.

7.  In view of the foregoing, the FSM's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

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)                                         AR20110020627



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ABCMR Record of Proceedings (cont)                                         AR20110020627



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