IN THE CASE OF:	 

		BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120001039 


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 bad conduct discharge to an honorable discharge.

2.  The applicant states there was no consideration of mental illness in his court-martial.  He claims he suffered physical injuries that also affected his personality which is documented in his military medical record.  He states he has received treatment to overcome his mental disease and he is not the person he was.  He currently has an associate's degree and he is pursuing an undergraduate degree.

3.  The applicant provides medical treatment records, a training certificate, and his college transcript in support of his application.

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.  The applicant enlisted in the Regular Army on 5 January 1982.  He was trained in and awarded military occupational specialty 71L (Administrative Specialist).  His record shows he was promoted to sergeant (SGT)/E-5 on
5 September 1989, and this is the highest rank he attained while on active duty.  It also shows he was reduced to specialist (SPC)/E-4 for cause on 17 November 1987, and reduced to private first class (PFC)/E-3 for cause on 25 August 1988.  He was finally reduced to private (PV1)/E-1 on 8 September 1989.

3.  The record shows the applicant earned the Army Service Ribbon, Overseas Service Ribbon (2nd Award), Noncommissioned Officer (NCO) Professional Development Ribbon, Army Achievement Medal, Army Good Conduct Medal, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.

4.  The applicant's disciplinary history includes a special court-martial conviction on 31 May 1988 for three specifications of violating Article 92 of the Uniform Code of Military Justice (UCMJ) by disobeying three separate lawful orders on
2 and 30 April 1988.  The record further shows the applicant was absent without leave (AWOL) for 17 days between 1 and 17 March 1989.

5.  On 28 April 1989, a general court-martial found the applicant guilty of violating Article 91 of the UCMJ by disobeying an NCO on 28 August 1988; violating Article 134 of the UCMJ by impersonating an NCO on 28 August 1988; and violating Article 89 of the UCMJ by being disrespectful to a commissioned officer on or about 19 December 1988.  The resulting sentence was reduction to PV1/E-1, forfeiture of all pay and allowances, confinement for 9 months, and a bad conduct discharge.

6.  General Court-Martial Order Number 2, issued by Headquarters, Fort McPherson, GA, dated 8 September 1989, shows the sentence adjudged on
28 April 1989 was approved by the general court-martial convening authority.  Except for the bad conduct discharge, the sentence would be executed.

7.  General Court-Martial Order Number 432, issued by the U.S. Army Correctional Brigade, Fort Riley, KS, dated 25 July 1990, directed that, Article 71c having been complied with, that portion of the sentence pertaining to a bad conduct discharge be duly executed.

8.  On 2 August 1990, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a court-martial with a bad conduct discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 8 years, 3 months, and 4 days of creditable active service with 407 days of time lost due to AWOL and confinement.

9.  The applicant provides military medical treatment records dated between August 1983 and October 1988.  None of the treatment records indicate the applicant suffered from a disabling medical condition that would have supported his separation processing through medical channels at the time.  An Optional Form (OF) 275 (Medical Record report) prepared by the Dwight E. Eisenhower Army Medical Center (DDEAMC), Fort Gordon, GA, dated 15 June 1987, covers the applicant's hospitalization between 3 and 15 June 1987.  This form confirms the applicant was diagnosed with an adjustment disorder with mixed emotional features, moderate.  It also contains a medical recommendation that the applicant be returned to duty and indicates the applicant should continue to be a productive member of the U.S. Army.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

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.  The applicant's contention that his bad conduct discharge should be upgraded because his mental problems were not addressed during his court-martial and based on his post-service accomplishments have been carefully considered.  However, there is an insufficient evidentiary basis to support this claim.  There is no evidence of record or independent evidence provided by the applicant supporting his assertion that he suffered from a physical or mental condition that would have rendered him unfit for further service or supported his separation processing through medical channels at the time of his general court-martial.


2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  Further, while his post-service educational accomplishments are noteworthy, his record shows a disciplinary history that includes an AWOL offense and a special court-martial conviction prior to the general court-martial conviction that led to his bad conduct discharge.  In addition, his record is void of any medical treatment records and the treatment records he provides, while showing he suffered from an adjustment disorder, fails to show he was suffering from a physical or mental condition that would have contributed to the misconduct that led to his court-martial action and subsequent bad conduct discharge.

4.  As a result, based on the gravity of the offenses resulting in his general court-martial conviction and bad conduct discharge, his overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of his 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)                                         AR20120001039



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ABCMR Record of Proceedings (cont)                                         AR20120001039



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