IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20120001373 


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, in effect, his bad conduct discharge be upgraded.

2.  The applicant states he was under a great deal of stress and pressure and his promotion was on hold.  He mentions his mental health status and a bar to reenlist.  He also states he wants consideration for Department of Veterans Affairs (VA) benefits and the GI Bill.  

3.  The applicant provides:

* Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY General Court-Martial Order Number 44, dated 2 February 1999
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 15 September 1995 for a period of 
3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).

3.  On 15 September 1996, he attempted suicide by taking an overdose of an unknown quantity of motrin, cyclobenzaprine, and amitriptyline.  On 29 October 1996, the Division psychiatrist stated the applicant's suicide attempt necessitated his hospitalization and placement into the Intensive Care Unit.  He took the overdose in response to his fear of a court-martial.  The psychiatrist diagnosed him as having an adjustment disorder with disturbance of conduct.  He stated there was no evidence of mental unsoundness at the time of the suicide attempt. He recommended in line of duty - no, due to own misconduct.

4.  A DD Form 261 (Report of Investigation - Line of Duty and Misconduct Status), dated 13 November 1996, shows his suicide attempt was found to be not in line of duty - due to own misconduct.

5.  On 18 April 1997, he pled guilty and was found guilty before a general court-martial of:

* failure to go at the time prescribed to his appointed place of duty on or about 14 September 1996
* wrongful appropriation of private property on or about 14 September 1996
* larceny of private property on or about 7 September 1996
* wrongfully left the scene of an accident on or about 14 September 1996
* making a false statement under oath on or about 15 September 1996
* making a false statement under oath on or about 30 September 1996
* making a false official statement on or about 18 November 1996

6.  His sentence consisted of:

* forfeiture of all pay and allowances
* confinement for 31 months
* a bad conduct discharge


7.  On 21 May 1998, the findings of guilty and the sentence were affirmed by the United States Army Court of Criminal Appeals.  On 2 February 1999, his bad conduct discharge was ordered executed.

8.  On 16 August 1999, he was issued a bad conduct discharge.  He had 2 years, 5 months, and 27 days of net active service.  He had 512 days of time lost.

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

	a.  Chapter 3, section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge and provides that a Soldier will 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 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.  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.  

10.  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.

11.  Code of Federal Regulations Title 38, Section 3.12 (a) provides for an administrative determination by the VA that an "other than honorable discharge was issued under conditions other than dishonorable" to establish basic eligibility for VA benefits.


DISCUSSION AND CONCLUSIONS:

1.  There is no evidence his misconduct was as a result of a mental condition.  He was found to be mentally sound at the time of his attempted suicide on 
15 September 1996.

2.  The administration of VA benefits and the GI Bill do not fall under jurisdiction of the ABCMR.  The VA, in accordance with its own policies and regulations, may make an administrative decision as to whether an individual's period of service is considered as under conditions other than dishonorable for the purpose of VA benefits.  This administrative decision does not establish error or injustice in the Army's characterization of the applicant's service.

3.    The charges of theft and making false statements under oath he was convicted of are serious charges.  Theft of property cannot be tolerated.  Therefore his service is considered unsatisfactory.  

4.  The evidence shows 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.

5.  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.

6.  Based on the foregoing, there is an insufficient basis to upgrade his bad conduct discharge to a general discharge or an honorable 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)                                         AR20120001373



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ABCMR Record of Proceedings (cont)                                         AR20120001373



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