BOARD DATE:  20 December 2012

		DOCKET NUMBER:  AR20120010620


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 bad conduct discharge.

2.  The applicant states:

* the Army should have known he was mentally incompetent because of the very nature of the crimes he allegedly committed
* the Army placed him with a defense counsel who did not protect his rights under the U.S. Constitution; specifically, the 14th Amendment

3.  The applicant provides no additional evidence 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 served as a cadet in the U.S. Military Academy Preparatory School, at Fort Monmouth, NJ, from 16 June 1978 to 1 July 1979, and in the U.S. Military Academy at West Point, NY, from 2 July 1979 to 17 February 1981.

3.  On 17 February 1981, he was honorably released from active duty, from the U.S. Military Academy at West Point, NY, by reason of academic dismissal.

4.  On 20 May 1981, he enlisted in the Regular Army.  His record shows he held military occupational specialty 73C (Finance Specialist).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

5.  On or about 22 March 1984, he was reassigned to the 7th Finance Company, Personnel and Administration Battalion, 7th Infantry Division, Fort Ord, CA.  

6.  Before a General Court-Martial at Fort Ord, CA, he was convicted of:

   a. Specification 2 of Charge I for violating Article 80 of the Uniform Code of Military Justice (UCMJ) by attempting wrongful appropriation of U.S. currency of a value of $500, on 17 November 1983; 

   b. A single specification of Charge II for violating Article 121 of the UCMJ by committing larceny of U.S. property of a value of $7,683.31, on a date not specified;

   c. Specification 1 of Charge IV for violating Article 123a of the UCMJ by wrongfully and unlawfully making and uttering, with the intent to deceive and for the purpose of fraudulently increasing the amount of a credit balance in another's account, a certain check in the amount of $1,500, on 17 November 1983; and

   d. Specification 2 of Charge V for violating Article 134 of the UCMJ by wrongfully soliciting a fellow Soldier to wrongfully and unlawfully make, with intent to defraud and for the procurement of unlawful currency, a draft in the amount of $500, on 17 November 1983.

7.  On 24 January 1985, the court sentenced him to reduction to the rank/grade of private/E-1, a fine of $5,000, confinement for 1 year, and a bad conduct discharge.

8.  Orders 57-313, issued by Headquarters, 7th Infantry Division, Fort Ord, CA, dated 21 March 1985, reassigned him to the U.S. Army Correctional Activity, Fort Riley, KS, effective 1 April 1985.

9.  On 4 April 1985, the convening authority approved his sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

10.  On 26 July 1985, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

11.  On 8 November 1985, he underwent a separation physical, which included a mental status evaluation.  His DA Form 3822-R (Report of Mental Status Evaluation) shows that, in the opinion of the medical professional who examined him, he had the mental capacity to understand and participate in his separation proceedings, he was mentally responsible, and he met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  None of the various medical forms he completed during his separation physical make note of any diagnosed mental deficiencies.   

12.  General Court-Martial Order Number 629, issued by Headquarters,
U.S. Army Correctional Activity, Fort Riley, KS, dated 15 November 1985, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge, as ordered by General Court-Martial Order Number 16, issued by Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, CA, dated
4 April 1985, was ordered duly executed.

13.  On 15 November 1985, his duty status changed from "Confined by Military Authorities" to "Present for Duty."  On this same date, he was signed out on excess leave pending the finalization of his discharge proceedings.

14.  Orders 228-5, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, dated 25 November 1985, discharged him from the Army in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), effective 3 December 1985.  

15.  On 3 December 1985, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial with a bad conduct discharge.  He completed 3 years, 8 months, and 19 days of net active service during this period of enlistment, and he was credited with 2 years, 8 months, and 2 days of prior active service.

16.  His record is void of documentation that shows he was diagnosed with any medical condition warranting his entry into the Physical Disability Evaluation System (PDES).

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to perform the duties of his office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, it provides for disposition of the member according to applicable laws and policies.

18.  Army Regulation 635-200 sets forth the basic authority 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.  

   c. Paragraph 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

19.  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 he was mentally incompetent during his court-martial proceedings.

2.  The evidence of record does not support his contention and does not indicate he suffered from mental incompetence.  Further, his record is void of documentation that shows he was diagnosed with any medical condition warranting his entry into the PDES.  

3.  The applicant was given a bad conduct discharge pursuant to an approved sentence by a general court-martial, which was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

4.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction 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.  

5.  In view of the foregoing, there is insufficient evidentiary 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 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20120010620



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