IN THE CASE OF: 

		BOARD DATE:	    18 December 2012

		DOCKET NUMBER:  AR20120010054 


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 an upgrade of his 1987 bad conduct discharge to an honorable discharge. 

2.  The applicant states that suffered from severe trauma for which an application for benefits has been filed with the Department of Veterans Affairs (VA).

3.  The applicant provides:

* Letter of support
* VA Form 21-4138 (Statement in Support of Claim)
* DA Form 2-1 (Personnel Qualification Record)

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's records show he enlisted in the Regular Army on 25 August 1977 and he held military occupational specialty 75B (Personnel Administration Specialist).  

3.  He served in a variety of stateside and overseas assignments, including Panama, and he attained the rank/grade of specialist five/E-5.  

4.  He was honorably discharged on 10 March 1982.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service is not available for review with this case.  However, he was issued a Certification of Military Service that captured this period of active duty.

5.  He reenlisted in the Regular Army on 11 March 1982.  He subsequently served in Germany from December 1984 to November 1986.  

6.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on/for:

* 5 February 1986, failing to go to his appointed place of duty and disobeying a lawful order
* 27 March 1986, for wrongfully using marijuana
* 7 April 1987, failing to go at the time prescribed to his appointed place of duty

7.  Also on 13 August 1986, a previously-suspended punishment that was imposed on 11 June 1986 (not available for review with this case) was vacated after the applicant:

* escaped from the custody of two individuals who were authorized to apprehend him
* made a false official statement
* operated a vehicle while drunk
* assaulted a Military Police official

8.  On 13 November 1986, he was convicted by a court-martial and received a sentence of confinement for 5 months, reduction to the lowest enlisted grade, a forfeiture of $200.00 pay per month for 5 months, and a bad conduct discharge.  He was confined at the U.S. Army Confinement Facility, Mannheim, Germany.  

9.  The complete facts and circumstances surrounding his court-martial conviction and subsequent appellate review are not available for review with this case.  However, his records contain:
	a.  Orders 211-6, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, on 3 November 1987, ordering his discharge effective 9 November 1987.

	b.  A duly-constituted DD Form 214 that shows he was discharged on 9 November 1987 in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separations) as a result of a court-martial with a bad conduct discharge.  He completed a total of 5 years, 3 months, and 24 days of creditable military service and he had lost time from 13 November 1986 to 17 March 1987.

10.  He submitted:

	a.  A statement, dated 16 May 2012, from an American Ex-Prisoner of War who states the applicant experienced severe trauma when his roommate was killed in an apartment fire in 1986.  He suffered from survivor guilt and post-traumatic stress disorder (PTSD) which were never addressed by the military.  

	b.  A VA Form 21-4138, dated 18 April 2012, wherein he states he has arches in both feet as a result of physical training and running in his boots.  When he was in Panama, he and his friend were arrested and taken to jail.  While in jail, he woke up and discovered someone had sexually assaulted him but he never reported the assault to the medics.  As a result, he suffers from PTSD. 

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.

12.  Army Regulation 635-200 (Personnel Separations) provides for the following characters of service: 

	a.  Paragraph 3-7a states 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 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 and other documents that show he was convicted by a court-martial in November 1986.  He was discharged pursuant to a court-martial sentence and received a bad conduct discharge.  

2.  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 therefore were appropriate.  As a result, clemency is not warranted in this case.

3.  Nothing in his records supports his claim to PTSD or that a medical condition caused his misconduct.  Those issues could have been raised in the trial or appellate process.  He provides no medical evidence of a PTSD diagnosis during his military service.  He also provides no evidence of the alleged sexual assault.  

4.  The available evidence shows a military career marred with misconduct that included multiple instances of NJP and confinement.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20120010054



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ABCMR Record of Proceedings (cont)                                         AR20120010054



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