IN THE CASE OF:	  

		BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20110025200 


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 an upgrade of his bad conduct discharge.

2.  The applicant states he was mentally ill and he is now seeking treatment for mental illness.  He is homeless and living in Department of Veterans Affairs (VA) transitional housing.  His circumstances are in large part due to the mental problems that he had at the time of his discharge, which manifested itself in heavy drinking and poor behavior.  He states he was suffering from substance addiction while in the military and he is currently under treatment at a VA transitional facility for homeless veterans.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) from the U.S. Army Reserve (USAR) with a separation date of 21 February 1986
* DD Form 214 from the Regular Army with a separation date of 2 October 1992

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.  He enlisted in the Regular Army on 4 January 1990 for a period of 4 years.  He had previously served 5 months and 22 days in the USAR.  He was awarded the military occupational specialty 63B (Light Wheel Vehicle Mechanic).

3.  On 12 February 1991, he was found guilty before a general court-martial of:

* attempting to steal personal property of some value
* wrongfully using cocaine

4.  His sentence consisted of:

* reduction to the grade of E-1
* forfeiture of $400 pay per month for 24 months
* confinement for 24 months
* issuance of a bad conduct discharge

5.  On 17 May 1991, the convening authority approved only so much of the sentence that consisted of:

* reduction to the grade of E-1
* forfeiture of $400 pay per month for 15 months
* confinement for 15 months
* bad conduct discharge

6.  On 21 August 1991, he received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. 

7.  On 29 January 1992, his sentence to a bad conduct discharge was affirmed. 

8.  On 5 March 1992, he was seen by a lieutenant, Medical Service Corps, U.S. Navy Reserve, psychologist at the Naval Hospital, Millington, TN.  During the assessment, the applicant admitted to 7 of the 9 criteria for alcohol dependence and 9 of 9 criteria for cocaine dependence.  In her final diagnosis, it shows "rule out alcohol dependence and polysubstance dependence" and recommended assessment for treatment a VA Medical Center.

9.  On 17 September 1992, his discharge was ordered executed and on 
2 October 1992 he was discharged with a bad conduct discharge as a result of his court-martial conviction.  He completed 1 year, 9 months, and 24 days of net active service during the period under review.  He had 334 days of lost time.

10.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge 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.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

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.

DISCUSSION AND CONCLUSIONS:

1.  His 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 laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

2.  The seriousness of the charges he was convicted of at his general court-martial clearly shows his service to be unsatisfactory.

3.  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.

4.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable discharge or a general discharge under honorable conditions.

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)                                         AR20110025200



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110025200



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1