BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120004258 


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 reconsideration of an earlier request to upgrade his bad conduct discharge to a general discharge.

2.  The applicant states he wants his discharge upgraded so he can get some help to go back to college, get a degree, and better his life.

3.  The applicant provides:

* Two character reference letters
* Forensic evaluation

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100018608, on 10 February 2011.

2.  The applicant provides a character reference letter from his brother who served 26 years in the Army, U.S. Army Reserve, and Army National Guard.  He attests:

	a.  while stationed in Germany in March 1989, the applicant's motivation changed from one who had a positive outlook on his military career to one that had him struggling for any attempt to perform as a Soldier.  He was there when the applicant arrived in Germany.  After the applicant secured an apartment for his family, his wife changed her mind about moving to Germany and this took a toll on him.  He got involved with another woman, they had a very rough relationship, and the applicant had a few mental breakdowns.

	b.  in July 1989, the applicant went absent without leave (AWOL) and was gone for months.  He was arrested in September, court-martialed in October, and discharged from the Army.

3.  He provided a character reference letter from his mother who attests:

* when her son joined the service he was going through a separation/divorce
* they had two children
* after his training, while he was home on leave, he and his wife got back together and his wife promised she and the children would follow him to Germany
* his wife changed her mind and refused to go to Germany
* she moved in with another man and proceeded with the divorce 
* his frame of mind upon learning his wife was not coming, and that she was living with another man, was compounded with him being homesick so he went AWOL 

4.  He also provided a forensic evaluation, dated 11 August 2008, from the U.S. Department of Justice, Federal Bureau of Prisons, in Englewood, CO.  The evaluation shows a forensic psychologist diagnosed him with amphetamine dependence (in a controlled environment), cocaine dependence (in a controlled environment), and major depressive disorder.

5.  The documentation provided by the applicant is new evidence that will be considered by the Board.

6.  The applicant enlisted in the Regular Army on 4 March 1988 for a period 
of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11M (Fighting Vehicle Infantryman).  He arrived in Germany on 14 July 1988.

7.  On 3 October 1989, he was convicted by a special court-martial of two specifications of being AWOL (9 to 23 August 1989 and 28 August to
21 September 1989), resisting apprehension, and violating a lawful general regulation by wrongfully possessing a lock blade knife.  He was sentenced to be confined for 3 months, a forfeiture of $466.00 pay for 3 months, reduction to pay grade E-1, and a bad conduct discharge.  On 28 November 1989, the sentence was approved by the convening authority.  

8.  On 8 June 1990, the U.S. Army Court of Military Review affirmed the findings and the sentence of the special court-martial.

9.  On 30 August 1990, his sentence to a bad conduct discharge was ordered executed.

10.  He was discharged with a bad conduct discharge on 2 October 1990 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 2 years, 4 months, and 23 days of creditable active service with 101 days of lost time.

11.  There is no evidence of record which shows he was diagnosed as having a drug abuse or dependency problem prior to his discharge in 1990.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

13.  Army Regulation 635-200, 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.

14.  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 wants his bad conduct discharge upgraded so he can obtain education benefits.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for educational benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The character reference letters submitted on behalf of the applicant failed to show his discharge was in error or unjust and should be upgraded.

3.  The 2008 forensic evaluation provided by the applicant was noted.  However, there is no evidence that shows he was diagnosed with drug abuse or dependency prior to his discharge in 1990.  In any case, additional misconduct of drug abuse would not mitigate the misconduct for which he was separated.

4.  A trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

5.  His record of service included one special court-martial conviction and 
101 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

6.  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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100018608, dated 10 February 2011.



      __________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)                                         AR20120004258





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ABCMR Record of Proceedings (cont)                                         AR20120004258



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