IN THE CASE OF:	  

		BOARD DATE:	  20 November 2012

		DOCKET NUMBER:  AR20120016779 


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 (BCD) to a general discharge (GD) under honorable conditions.

2.  He states, in effect, post-traumatic stress disorder (PTSD) led to the behavior for which he was tried by court-martial.  He indicates he was a good Soldier "until after war."  He now needs medical help and benefits from the Department of Veterans Affairs (VA), which he cannot obtain.

3.  He provides no documents 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.  On 13 June 1989, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 31V (Unit Level Communications Maintainer).  

3.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows he served in Saudi Arabia from 16 October 1990 to 19 April 1991.   

4.  A DA Form 4187 (Personnel Action), dated 6 November 1992, shows he was reduced to the rank of private first class/E-3 effective 9 July 1992.  The form shows the reduction was a result of action taken against him under the Uniform Code of Military Justice (UCMJ).  His record is void of documentation showing the specific reason for his reduction.

5.  On 19 April 1994, Headquarters, 1st Cavalry Division, Fort Hood, TX, issued General Court-Martial Order Number 10.  The order shows he was found guilty of:

* larceny of U.S. currency of a value of $400 on 12 April 1993
* wrongful appropriation of a motor vehicle of a value of more than $100 on 18 September 1992
* wrongful appropriation of a motor vehicle of a value of more than $100 on 14 June 1993
* wrongful appropriation of a motor vehicle of a value of more than $100 on 14 July 1993
* wrongfully using cocaine between 10 and 21 June 1993
* failure to obey a lawful order to remain on Fort Hood, TX, on 16 September 1993
* making a false official statement on 15 September 1993
* being absent without leave (AWOL) from 15 to 16 September 1993

6.  He was sentenced to a BCD, forfeiture of all pay and allowances, confinement for 7 months, and reduction to the grade of private/E-1.  Only so much of the sentence as provided for confinement for 6 months, reduction to private/E-1, forfeiture of all pay and allowances, and a BCD was approved.  Except for that part of the sentence extending to a BCD, the sentence was ordered to be executed.

7.  On 12 September 1994, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  

8.  On 13 March 1995, Headquarters, 1st Cavalry Division, Fort Hood, TX, issued General Court-Martial Orders Number 19 directing execution of the BCD.  

9.  On 26 February 1997, he was given a BCD in accordance with his affirmed sentence.  

10.  His record is void of documentation showing he was diagnosed with PTSD during his military service.

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

	a.  Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable or BCD) pursuant only to an approved sentence to a general court-martial or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  Paragraph 3-7b provides that a general discharge (GD) 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 evidence of record does not support the applicant's request for an upgrade of his BCD.  

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.

3.  In April 1994, he was convicted of larceny, three specifications of wrongful appropriation of a motor vehicle, wrongful use of cocaine, failure to obey a lawful order, making a false official statement, and being AWOL.  His conviction and sentence by general court-martial were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  

4.  The record is void of documentation showing PTSD contributed to his criminal behavior.  

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

6.  In view of the foregoing, there is no basis for granting the relief he requests.

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)                                         AR20120016779





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ABCMR Record of Proceedings (cont)                                         AR20120016779



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