IN THE CASE OF:	 

		BOARD DATE:	  5 July 2012

		DOCKET NUMBER:  AR20120001788 


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, that his bad conduct discharge be upgraded to honorable or to general, under honorable conditions.

2.  The applicant states he was discharged with a bad conduct discharge because he wrote $1,400.00 in bad checks in order to support his drinking problem.  His problem with drinking began in basic training.  He became depressed and anxious.  He could not deal with someone telling him what to do; when to get up; when to go to bed.  He is still dealing with his depression and anxiety.  He further argues that no one ever taught him about check writing or gave him any help with his problem of writing bad checks.  He knows it was wrong but the depression had overtaken him.  He adds that he was a cannon crewmember in the service.  The loud cannon noise affected his hearing.  Later, while in the stockade, he amputated two of his fingers when a saw started as he reached for some pieces of wood.

3.  The applicant provides no additional documentation.

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.  On 23 September 1987, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 
13B (Cannon Crewmember).  He was subsequently assigned to Fort Hood, Texas, for duty.

3.  General Court-Martial Order Number 21, Headquarters, 1st Cavalry Division, Fort Hood, Texas, dated 23 June 1989 shows the applicant was convicted of violating Article 92 (twenty specifications) under the Uniform Code of Military Justice (UCMJ) for wrongfully and unlawfully uttering worthless checks totaling $1,380.00, knowing that sufficient funds were not and would not be in the checking account.

4.  The applicant's sentence, adjudged on 10 April 1989, was:

	a.  bad conduct discharge;

	b.  confinement for 2 years;

	c.  total forfeiture of all pay and allowances; and

	d.  reduction to pay grade E-1.

5.  On 23 June 1989, the convening authority approved the sentence, except for the part extending to a bad conduct discharge, and ordered it to be executed.  The execution of that part of the sentence adjudging confinement in excess of     6 months was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended part of the sentence was to be remitted without further action.

6.  General Court-Martial Order Number 86, U.S. Army Correctional Brigade, Fort Riley, Kansas, dated 14 February 1990, announced the sentence had been affirmed.  Article 71(c) having been complied with, and the sentence to 


confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed.

7.  The applicant's DD Form 214 shows that he was discharged from the Regular Army on 22 February 1990 under the provisions of Army Regulation 
635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

8.  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 contends, in effect, that his bad conduct discharge should be upgraded to honorable or to general, under honorable conditions because he had a drinking problem due to depression and anxiety.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant argues that depression had overtaken him; thereby causing him to write worthless checks to support his drinking habit.  He admits to knowing what he did was wrong.  

4.  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.  Given the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.



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)                                         AR20120001788





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ABCMR Record of Proceedings (cont)                                         AR20120001788



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