IN THE CASE OF:	  

		BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120011869 


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, reconsideration of his previous request that his bad conduct discharge be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, he was suffering from a mental illness which began in May 1990.  This illness was primarily due to his sister suffering from postpartum depression and a divorce, and his mother who had been diagnosed with breast cancer in 1990, who later died in 1992.  He referred himself to Community Counseling Center and admitted to a 3-month history of cocaine abuse.  He incurred a considerable amount of debt as a result of his cocaine addiction, which was based on his depression and anxiety about his family issues.  He never reported his chronic depression, anxiety, and fear of being discharged.

3.  The applicant provides a self-authored statement, his mother’s death certificate, and a letter referencing the dissolution of his sister's marriage.

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 ABCMR in Docket Number AR20100025306 on 24 May 2011.

2.  The applicant provides a new argument which he believes constitutes new evidence.  This evidence was not previously considered by the Board; therefore, it warrants consideration.
3.  The applicant enlisted in the Regular Army on 15 November 1985 and held military occupational specialty 31L (Wire Systems Installer).  The highest rank/grade he attained while serving on active duty was specialist/E-4.

4.  His medical records show he self-referred to the Fort Gordon Community Counseling Center on 16 April 1990 and admitted to a having a 3-month history of cocaine use.  He was later admitted to the Dwight David Eisenhower Army Medical Center (DDEAMC).  After his release from DDEAMC on 19 April 1990, he was referred for Track II outpatient care in the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP).  During his outpatient treatment, he suffered a relapse and was readmitted to DDEAMC on 24 April 1990 for inpatient detoxification and further assessment.

5.  There is no documentation in his medical or other records to show he had been diagnosed with or was suffering from a mental illness.  Additionally, there is no record that he sought help from his chain of command to assist him with his family problems.

6.  Special Court-Martial Order Number 11, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, Georgia, dated 27 September 1990, shows he was found guilty of:

* three specifications of failing to go to his designated place of duty at the prescribed time
* one specification of being absent without leave (AWOL) from 5 June 1990 to 8 June 1990
* two specifications of assault and battery
* one specification of willfully disobeying the lawful order of a noncommissioned officer
* one specification of being disrespectful in language and deportment towards a commissioned officer 
* one specification of communicating a threat 

7.  The sentence was adjudged on 29 August 1990.  He was sentenced to a bad conduct discharge, confinement for 5 months, forfeiture of $450.00 pay for 
5 months, and reduction to the lowest enlisted grade.  The convening authority approved the sentence on 27 September 1990.  He served his confinement from 11 June through 15 October 1990.  

8.  The U.S. Army Court of Military Review set aside the finding of guilty for communicating a threat.  The court affirmed the remaining finding of guilty and affirmed the approved sentence.  

9.  The U.S. Court of Military Appeals denied the applicant's petition for review on 31 January 1992.  Special Court-Martial Order Number 17, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, GA, dated 6 December 1991, affirmed the applicant's sentence and ordered his bad conduct discharge executed.  

10.  He was discharged on 31 January 1992.  His DD Form 214 shows he received a bad conduct characterization of service.  This form further shows his discharge was effected in accordance with chapter 3, section IV, of Army Regulation 635-200 (Enlisted Separations) “as result of court-martial, other."

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 of the regulation then in effect provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must have been completed and the affirmed sentence ordered duly executed.  This regulation also provides guidance on characterization 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.  

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 change a discharge due to matters which should have been raised in the appellate process, 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 evidence of record shows the applicant was convicted by a special court-martial of three specifications of failing to go to his designated place of duty at the prescribed time, one specification of AWOL, two specifications of assault and battery, one specification of willfully disobeying the lawful order of a noncommissioned officer, and one specification of being disrespectful in language and deportment towards a commissioned officer.  He was discharged pursuant to the approved sentence of a special court-martial.  The issues he now raise could have/should have been raised at his trial and conclusively adjudicated in the appellate process.

2.  His trial by court-martial was warranted by the gravity of the offense charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.

3.  He provided no evidence to show his discharge is unjust or as a result of improper actions or that he had been diagnosed with or suffered from a mental illness.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgraded to a general or honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process with no violation of his rights.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, he is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR20100025306, dated 24 May 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)                                         AR20120011869





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ABCMR Record of Proceedings (cont)                                         AR20120011869



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