IN THE CASE OF:	  

		BOARD DATE:	  16 May 2013

		DOCKET NUMBER:  AR20120019524 


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).

2.  The applicant states he was suffering from bi-polar disorder which was diagnosed by a military psychiatrist.  He is currently enrolled at the Los Angeles, County Department of Mental Health and receives medication to cope with his disease.  He further states he has been sober for 16 years and voluntarily works with addicts, mental health workers, and clients to help himself with his shortcomings.   

3.  The applicant provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a Disabled American Veterans Advocate as counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.

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 enlisted in the Regular Army on 12 August 1980.  He completed training and was awarded military occupational specialty 91B (Medical Specialist).  

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 5 August 1981, for failing to have his Armed Forces Liberty Pass in his possession while absent from his installation and for failing to go to his appointed place of duty.

4.  On 3 November 1981, contrary to his pleas, he was convicted by a special court-martial.  The court sentenced him to reduction to the rank/grade of private/E-1, a forfeiture of $334.00 pay for 3 months, and confinement at hard labor for 3 months for the following:

* Charge I, one specification of assaulting a Soldier
* Charge I, one specification of assaulting a noncommissioned officer
* Charge III, one specification of willfully disobeying a lawful order
  
5.  On 10 May 1982, contrary to his pleas, he was once again convicted by a special court-martial.  The court sentenced him to a forfeiture of $300.00 pay for 5 months, confinement at hard labor for 3 months, and a bad conduct discharge for the following:

* Charge I, one specification of willfully disobeying a lawful order from a commissioned officer
* Charge II, one specification of willfully disobeying a lawful order from a noncommissioned officer
* Charge III, two specifications of wrongfully using provoking words

6.  On 21 October 1982, the U.S. Army Court of Military Review upheld the findings of guilty, found the sentence correct in law and fact, and affirmed the findings of guilty and the sentence.

7.  The applicant's record contains Special Court-Martial Order Number 13, issued by Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, Fort Polk, LA, dated 23 February 1983, which states in a special court-martial case the applicant's sentence to a BCD, a forfeiture of $300.00 pay for 5 months, confinement at hard labor for 3 months, adjudged on 12 April 1982, as promulgated in Special Court-Martial Order Number 30, issued by this headquarters, dated 10 May 1982, has been affirmed.  Pursuant to Special Court-Martial Order Number 39, issued by this headquarters, dated 19 July 1982, the unserved portion of the sentence pertaining to confinement at hard labor for a period of 3 months and the unapplied forfeitures were deferred effective 19 July 1982, unless the deferment is sooner rescinded.  The provisions of Article 71(c) having been complied with, the sentence will be duly executed.  The unserved portion of the sentence pertaining to confinement is remitted.

8.  On 7 March 1983, the applicant was discharged from the Army with a BCD.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 5 months, and 20 days of creditable active service with time lost from 21 September to 27 October 1981.

9.  His record is void of any evidence and he has not provided any evidence that shows he was ever diagnosed with or treated for bi-polar disorder or any other mental disorder while serving in the Army.

10.  The applicant applied to the Army Discharge Review Board for upgrade of his discharge.  On 14 July 1993, he was notified he was properly and equitably discharged and his request was denied.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a BCD 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.

12.  Army Regulation 635-200 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.

13.  Army Regulation 635-200 also provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

14.  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 due to his suffering from bi-polar disorder has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  His record is void of any evidence and he has not provided any evidence that shows he was ever diagnosed with or treated for bi-polar disorder or any other mental condition while serving in the Army.  His medical condition was an issue that could have been raised during trial or the appellate process.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable law and regulations.

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.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20120019524



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ABCMR Record of Proceedings (cont)                                         AR20120019524



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