IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110021063 


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 reconsideration of a previous application for clemency by upgrading his bad conduct discharge (BCD). 

2.  He states he is sorry that during his first request he was unable to communicate the main reason he was seeking clemency.  He slashed his wrists in an attempt to commit suicide while in the stockade at Fort Gordon, GA.  He believes he should have received mental medical treatment, as he was under the Army's care at the time. 

3.  He feels if his mental issues were addressed, along with all other facts and fears which caused him to go absent without leave (AWOL), the outcome of his trial would have been different.  It is his belief that he would have been given a medical discharge and follow-on treatment for Post-Traumatic Stress Disorder (PTSD) as diagnosed by the Department of Veterans Affairs.  

4.  He did not provide any additional documentation. 

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 AR20110001129, on 27 July 2011.

2.  The applicant provides a new argument pertaining to his mental health which will be considered by the Board.  

3.  He enlisted in the Regular Army on 25 May 1965.  After completion of training, he served in military occupational specialty 11B (Light Weapons Infantryman).

4.  His record shows he was convicted by a special court-martial of going AWOL from 12 December 1965 to 10 January 1966.  His sentence included confinement at hard labor for 3 months (suspended for 3 months), reduction to pay grade E-1, and a forfeiture of pay for 3 months.

5.  On 7 June 1967, he was convicted pursuant to his plea by a general court-martial of going AWOL from 28 August 1966 to 16 February 1967.  He was sentenced to confinement at hard labor for 6 months and a BCD.

6.  On 15 August 1967, the U.S. Army Board of Review affirmed the findings and sentence as approved by the convening authority.

7.  On 7 September 1967, he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad Conduct Discharges), pursuant to a court-martial conviction.  He had served 1 year, 2 months, and 8 days of net service and had 401 days of lost time due to AWOL and confinement.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was issued a DD Form 259A (BCD Certificate).  

8.  Neither the applicant's military medical record or VA medical record are available for review by this Board.  His available record also fails to show that the applicant was ever diagnosed with or displayed symptoms of PTSD prior to his discharge from the Army.

9.  Army Regulation 635-204, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 1(b) provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must have been completed and the affirmed sentences ordered duty executed.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

   b.  Paragraph 3-7, 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.
   
11.  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.

12.  PTSD, an anxiety disorder, was recognized as a psychiatric disorder in 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM).  The condition is described in the current DSM-IV, pages 424 through 429.  The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge.  The specific diagnostic label given to an individual’s condition after his discharge from the service may change, but any change does not call into question the application, then existing fitness standards.

DISCUSSION AND CONCLUSIONS:

1.  He contends his trial by general court-martial would have produced different results had he been provided the appropriate mental medical treatment he needed while under the Army's care.  He also claimed his PTSD was a contributing factor for his misconduct of going AWOL. 

2.  His contentions have been noted; however, the applicant has not provided any evidence and his record does not contain any documentation which shows he suffered from a disabling mental condition that would have warranted his separation processing through medical channels.

3.  The Army used established standards and procedures for determining fitness for entrance and retention and utilized those procedures and standards in evaluating the applicant at the time of his discharge.  The applicant's claim that he was diagnosed with PTSD by the VA in 1973 has not been substantiated.  

4.  More specifically, a diagnostic label given to an individual’s condition after his discharge from the service may change, but any change does not call into question existing fitness standards at the time of his discharge.  As a result, there is insufficient evidence to support a conclusion that the applicant's PTSD condition was a significant contributing factor in the misconduct that resulted in his discharge.  

5.  The evidence of record shows the he was convicted by a general court-martial which resulted in a BCD.  Trial by general court-martial was warranted by the serious nature of the offense for which he was charged.  The sentence is commensurate with the misconduct of which the applicant was convicted.  The applicant has established no basis for granting clemency.  

6.  In view of the foregoing, he is not entitled to the 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 to amend the decision of the ABCMR set forth in Docket Number AR20110001129, dated 27 July 2011.




      _______ _   _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)                                         AR20110021063





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ABCMR Record of Proceedings (cont)                                         AR20110021063



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