IN THE CASE OF:	  

		BOARD DATE:	  23 August 2012

		DOCKET NUMBER:  AR20120004162 


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 his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he made some bad choices during his military service due to the stress of being in the military coupled with personal problems.  These factors were compounded by substance abuse which caused his decline.  He claims he was actively suffering from depression and alcohol abuse at the time of his discharge.  

3.  The applicant provides a medical treatment record in support of his request.

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 21 January 1969.  He was trained in and awarded military occupational specialty 91B (Medical Specialist).   His record shows he was promoted to specialist four (SP4)/E-4 on 4 December 1969, and this is the highest rank he attained while on active duty.  It also shows he was reduced to private first class (PFC)/E-3 for cause on 13 February 1970.  He was finally reduced to private (PV1)/E-1 on 7 April 1970.  

3.  The record shows the applicant earned the National Defense Service Medal (NDSM).  His disciplinary history includes a summary court-martial (SCM) on      7 April 1970, for violating Articles 86, 90, and 89 of the Uniform Code of Military Justice (UCMJ); and his acceptance of nonjudiciial punishment (NJP) under the provisions of Article 15 of the UCMJ on two separate occasions between 
30 August 1969 and 13 February 1970.  

4.  On 22 April 1970, a psychiatric evaluation was completed on the applicant.  The examining physician determined there was no indication warranting action through medical channels and cleared the applicant for administrative action deemed necessary by his command.  

5.  On 22 July 1970, a special court-martial (SPCM) found the applicant guilty of violating the following articles of the UCMJ by committing the offenses indicated:

   a.  Article 86, by being absent without leave (AWOL) on 9 June 1970;
   
   b.  Article 91, by being disrespectful in language toward a superior noncommissioned officer on 28 May 1970; and 
   
   c.  Article 128, by committing assault on a sergeant on 9 June 1970.  

6.  The SPCM sentence imposed by the military judge was a BCD; confinement at hard labor for 3 months; and forfeiture of $80.00 per month for 3 months.  SPCM Order 26, dated 6 August 1970, issued by Headquarters 3 rd Armored Division, shows the sentence was approved by the SPCM convening authority.  SPCM Order Number 1, issued by the U.S. Army Flight Training Center and Fort Stewart, Fort Stewart, Georgia, dated 4 February 1971, directed that, Article 71c having been complied with, the sentence be duly executed.

7.  On 5 February 1971, the applicant was discharged under the provisions of Army Regulation 635-204, by reason of SPCM with a bad conduct discharge.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he completed 1 year, 11 months, and 20 days of creditable active service with 25 days of time lost due to confinement.

8.  On 9 April 1980, after carefully considering the applicant’s entire military service record and all the available evidence, the Army Discharge Review Board (ADRB) determined the applicant’s discharge was proper and equitable, and it voted unanimously not to change the characterization or reason for his discharge.  

9.  The applicant provides military medical treatment record that shows he was interviewed by military medical personnel on 8 June 1970, and showed borderline schizophrenia.  

10.  Army Regulation 635-204, in effect at the time, provided the policies and procedures for separating members with a dishonorable discharge or a BCD.  It stipulated, in pertinent part, that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial.

11.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  

   a.  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.

   b.  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.  

12.  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 request to upgrade his BCD based on the fact he was suffering from depression and stress caused by military service at the time of his discharge has 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 showing he suffered from a physical or mental condition that would have supported his separation processing through medical channels.  To the contrary, the record contains a psychiatric evaluation confirming no mental or physical disability. 

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.  Based on the 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)                                         AR20120004162



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004162



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1