IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20110024909


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 upgrade of his dishonorable discharge to an honorable discharge by reason of medical disability.

2.  The applicant states he should have received a medical discharge because he had psychiatric problems, and as a result, he was not medically qualified to serve.

3.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) Docket Number AC82-09867, dated 20 October 1982
* record of medical care from the West Virginia School of Osteopathic Medicine Campus Clinic, dated 13 May 1985
* psychiatric evaluation from Mental Health Council, Inc., Raleigh County, Beckley, WV, dated 4 January 1984
* letter from his attorney, dated 14 November 1985, including an attached Summary of Examination from a doctor at the West Virginia School of Osteopathic Medicine Campus Clinic, dated 13 June 1985
* letter from a psychiatrist at Appalachian Psychiatric Services, dated        15 September 1986
* Psychiatric Discharge Summary and Psychiatric Assessment from Carolinas Medical Center – Randolph, dated 17 December 2007
* letter from the Department of the Army, Office of the Judge Advocate General, Washington, DC, dated 7 July 1972
* Applicant's request for transfer to his unit commander, dated 16 February 1971
* Applicant's statement regarding his request for transfer, undated
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), covering the period 20 March 1968 through 15 October 1973
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), pertaining to his DD Form 214 covering the period 20 March 1968 through 15 October 1973, dated 15 June 1983
* letter from Headquarters, V Corps Support Command, Germany, dated  14 September 1971, subject: Professionalism in the United States Army
* letter from the Chief of Staff of the Army to all officers and noncommissioned officers (NCO) of the Army, dated 7 April 1971
* citation, Army Commendation Medal, for meritorious service during the period 17 May 1969 through 16 May 1970
* Permanent Orders 138-6,  U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, dated 23 July 1984, subject: Award of the Army Good Conduct Medal
* DA Form 137 (Installation Clearance Record), dated 11 April 1970
* DA Form 3340 (Request for Regular Army Enlistment/Reenlistment/Extension and/or Amendment), dated                18 December 1970
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2496 (Disposition Form), dated 6 July 1972
* AEUO Form 61 (Academic Report), dated 4 February 1972
* DA Form 2166-4 (Enlisted Efficiency Report), dated 24 September 1970
* DA Form 2166-4, dated 15 March 1971
* DA Form 2166-4, dated 10 June 1971
* DA Form 2166-4, dated 2 November 1971
* letter from the Department of the Army, Office of the Inspector General, Washington, DC, dated 12 September 1972
* letter from a licensed counselor at Behavioral Health Centers, Carolinas Medical Center, dated 30 September 2009 

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 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.  The applicant was inducted into the Army of the United States, for a 2-year term, on 24 May 1966.  He completed training and was awarded military occupational specialties 62E (Heavy Construction Equipment Operator), 76A (Supplyman), and 76Y (Unit Supply Specialist).  Upon the completion of his required training, he was assigned to the 67th Medical Depot, Einsiedlerhof, Germany.

3.  On 19 March 1968, he was discharged for the purpose of immediate enlistment in the Regular Army.  On 20 March 1968, he enlisted in the Regular Army for a 6-year term.  He served in various positions and attained the rank/pay grade of staff sergeant (SSG)/E-6.

4.  On 15 April 1968, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order, a violation of Article 91 of the UCMJ.

5.  Item 31 (Foreign Service) of his DA Form 20 shows he served in the Republic of Vietnam from on or about 17 May 1969 to on or about 20 April 1970.  After completing his assignment in the Republic of Vietnam, he was reassigned to Germany, first with the 6th Battalion, 9th Field Artillery Regiment and later with the 14th Supply and Service Battalion.

6.  At a general court-martial at Headquarters, V Corps, Frankfurt, Germany, he first pled guilty, then changed his plea to not guilty, to a single Charge of violating Article 80 of the UCMJ – specifically, attempting to steal American and German currency, in the amount of $53,753.50, from the American Express International Banking Corporation.

7.  On 31 July 1972, the Court found him guilty and sentenced him to be discharged from the Army with a dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for 3 years, and reduction to the lowest enlisted pay grade.

8.  On 24 August 1972, the convening authority approved the sentence and, except for the dishonorable discharge, ordered it executed.  The applicant was remanded to the U.S. Disciplinary Barracks, Fort Leavenworth, KS.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

9.  On 8 May 1973, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  The U.S. Court of Military Appeals denied his petition for review.

10.  General Court-Martial Order Number 826, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 5 September 1973, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered his dishonorable discharge executed.

11.  On 15 October 1973, he was discharged in accordance with the directives of General Court-Martial Order Number 826.  The DD Form 214 he was issued shows he was discharged with a dishonorable characterization of service.

12.  The applicant's available record is void of any documentation that shows he was evaluated or treated for any mental illness or injury, prior to his incarceration at the U.S. Disciplinary Barracks, that might be attributed to his period of active service, or that was of a severity to warrant his entry into the Physical Disability Evaluation System (PDES).
  
13.  He provides numerous documents related to psychiatric evaluations he has undergone since his discharge from the Army.  These documents show he was diagnosed with certain mental disorders at various times, including schizophrenia, anxiety, and depression.  He also provides documents that allude to his duty performance prior to his conviction by court-martial, and these documents do not indicate he suffered from mental illness prior to his incarceration. 

14.  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.

15.  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.  

16.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  
17.  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.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge, or who is under sentence of dismissal or punitive discharge, may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge, refers it for trial to a court-martial which cannot adjudge such a sentence, or suspends the sentence in the case of a Soldier already under sentence, the case may be referred for disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his dishonorable discharge has been carefully considered; however, there is insufficient evidence to support his request.  

2.  He contends he should have received a medical discharge because he had psychiatric problems, and as a result, he was not medically qualified to serve.

3.  His records show he was diagnosed with psychiatric issues; however, none of his medical diagnoses occurred prior to his incarceration.  Therefore, he has failed to show that his mental issues played an underlying role in the misconduct that resulted in his court-martial.  Furthermore, his records show he was discharged after being convicted by a general court-martial.  Army Regulation 635-40 states that a member who is charged with an offense for which he could be dismissed or given a punitive discharge, or who is under sentence of dismissal or punitive discharge, may not be referred for disability processing.  Accordingly, his medical qualification to serve has no bearing on either the authority or reason for his separation, or his characterization of service.

4.  He was given a dishonorable discharge pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offense charged at the time.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and his rights were fully protected.  

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

6.  In view of the foregoing, there is insufficient basis to grant 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20110024909



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