IN THE CASE OF:	   

		BOARD DATE:	  7 May 2013

		DOCKET NUMBER:  AR20120018934 


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, an upgrade of his Bad Conduct Discharge (BCD).   

2.  The applicant states he passed the audition for the Army Band after auditioning with the Band Master at Fort Ord, California; however, when he started the enlistment process at the Los Angeles California Military Entrance Processing Station (MEPS), recruiting errors resulted in his enlisting in military occupational specialty (MOS) 19K.  He claims the recruiter told him there were no openings for the Army Band but he could enlist and change his MOS after he was in.  He states that once in, he was assigned to a COHORT unit and could not change his MOS.  He states his inability to fulfill his dream of being an entertainer resulted in a Post-Traumatic Stress Disorder (PTSD) that resulted in his excessive use of alcohol and often engaging in arguments with noncommissioned officers (NCOs).  He states he tried to resolve these issues through the chaplain to no avail.  He claims he was allowed to participate in some music activities and was recommended for the Soldiers’ Show; however, his commander did not allow this.  

3.  The applicant provides a self-authored statement and an unofficial transcript from Los Angeles Harbor College 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 record shows the enlisted in the Regular Army on 18 April 1989, for a period of 3 years.  In connection with his enlistment, the applicant completed a DA Form 3286-60/7 (Statement for Enlistment U.S. Army Enlistment Options) in which he signed a statement acknowledging that he understood he could not submit a personnel action for any volunteer program until the final (third) year of assignment to a COHORT unit.   The applicant authenticated this statement with his signature on 18 April 1989.  

3.  The applicant successfully completed basic combat training at Fort Knox, Kentucky and advanced individual training (AIT) in MOS 19K (Armor Crewman) at Fort Carson, Colorado.  He was advanced to private first class (PFC)/E-3 on 18 April 1991, and this is the highest rank he attained while serving on active duty.   

4.   The applicant’s disciplinary history shows his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 19 March 1991, for being absent without leave (AWOL) from 7 to 8 February 1991.  The punishment imposed included his reduction to private/E-2.  The record also shows he accrued 30 days of time lost due to military confinement between 3 July and 1 August 1991.  

5.  The applicant’s record is void of medical records that indicate he was suffering from PTSD or from any other disqualifying medical condition while serving on active duty.  



6.  The record contains a Report of Result of Trial memorandum that shows on 30 September 1991, a special court-martial (SPCM) found the applicant guilty of violating Articles 86 (AWOL), 112a (Wrongful use of Cocaine), and 123a (Uttering of worthless checks) of the UCMJ.  The resulting sentence was reduction to private/E-1, confinement for 75 days, and a BCD.

7.  SPCM Order Number 8, issued by Headquarters, 7th Infantry Division (Light), Fort Ord, California, dated 21 January 1993, directed, Article 71c having been complied with, that portion of the sentence pertaining to a BCD be duly executed.

8.  On 16 February 1992, the applicant was discharged as a result of a court-martial with a BCD.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he completed 3 years, 9 months, and 1 day of creditable active service with 30 days of time lost due to confinement.  

9.  There is no evidence indicating the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s
15 years statute of limitations.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a BCD.  It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his BCD should be upgraded based on recruiter error and the impact of PTSD on his behavior at the time of his discharge has been carefully considered.  However, by law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  
2.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.  Further, the evidence of record confirms the applicant acknowledged his understanding that he would not be allowed to submit personnel actions until the third year of his COHORT assignment in a DA Form 3286-60/7 he completed during his enlistment processing.  

3.  In addition, there is no evidence of record or independent evidence submitted by the applicant that shows recruiter or enlistment processing error in conjunction with his enlistment.  In addition, there is no evidence that he suffered from a PTSD or any other medically disqualifying condition at the time he committed the misconduct that resulted in his court-martial and BCD.  Therefore, based on the gravity of the offenses resulting in his SPCM conviction and BCD, his overall record of service is not sufficiently meritorious to support clemency and/or 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 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)                                         AR20120018934



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ABCMR Record of Proceedings (cont)                                         AR20120018934



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