IN THE CASE OF:	

		BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120020989 


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 to a general discharge.

2.  He states a medical board was ordered by the commanding general (CG) in August 1985.  To his knowledge, it was never done.  He made several trips from Fort Riley, KS, to an Army hospital in Denver, CO, where he was being treated by mental health.  He was also seen by mental health at Fort Riley throughout his stay there.  He is still seeing a Department of Veterans Affairs mental health department.  He states his sentence was approved and ordered executed except for the part of the sentence extending to a BCD.  He lost a year of his life and a military career with only a few years before retirement.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 October 1986
* a Disposition Form, subject:  Request for a Medical Board to Make an Inquiry into the Sanity of [Applicant], dated 29 August 1985
* an Order for Medical Board to Make a Sanity Inquiry, dated 29 August 1985
* page two of General Court-Martial Order Number 36, issued by Headquarters, 2nd Infantry Division, dated 30 October 1985


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 25 January 1971, the applicant enlisted in the Regular Army.  He continued his service through reenlistments and extensions.

3.  On 27 September 1985, the applicant appeared before a general court-martial.  His record contains General Court-Martial Order Number 36, dated
30 October 1985, that shows he was found guilty of:

* being absent without leave from 17 December 1984 to 2 August 1985
* wrongfully and unlawfully uttering certain checks upon a bank from 6 May to 11 December 1984

4.  The court-martial convening authority sentenced him to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 15 months, and a BCD.  The sentence was approved and, except for the part of the sentence extending to a BCD, ordered executed.

5.  His Army Military Human Resource Record (formerly known as the Official Military Personnel File (OMPF)) is void of documentation showing a medical board reviewed his record for the purpose of determining his sanity or that he appeared before such a board.

6.  His records show he was confined at the U.S. Army Correctional Activity (USACA), Fort Riley from 13 August 1985 to 12 August 1986.

7.  During his confinement, he was hospitalized at Fitzsimons Army Medical Center, Aurora, CO, for the following periods:

* 7 November to 17 December 1985


* 6 to 28 January 1986
* 6 to 18 March 1986

8.  The available records do not show the reason(s) for his hospitalizations.  His service medical records are not available for review.

9.  On 15 May 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the applicant's sentence.

10.  General Court-Martial Order Number 697, issued by the USACA, Fort Riley, dated 30 September 1986, states that Article 71(c) having been complied with, the bad conduct discharge will be executed.

11.  On 7 October 1986, he was given a bad conduct discharge in accordance with his affirmed sentence.

12.  He provides:

	a.  a Disposition Form, dated 29 August 1985, that shows a Staff Judge Advocate (SJA) recommended the CG, 2nd Infantry Division, direct that a Sanity Board be conducted, and

	b.  an Order for Medical Board to Make a Sanity Inquiry, dated 29 August 1985, that shows in response to a request by the defense, the CG, 2nd Infantry Division, ordered a medical board be convened to make an inquiry into the applicant's sanity, and, upon completion of its report, notify the SJA and Senior Defense Counsel.

13.  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 bad conduct discharge) pursuant only to an approved sentence to a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.


	c.  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.

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 evidence of record does not support the applicant's request for an upgrade of his bad conduct discharge to a general discharge.

2.  He was convicted of being absent without leave from 17 December 1984 to 2 August 1985 and wrongfully and unlawfully uttering certain checks upon a bank from 6 May to 11 December 1984.  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.  He was not given his bad conduct discharge until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review.

3.  He indicates a medical board was ordered by the CG but never done.  The available records do not show the results of a medical board's inquiry into his sanity.  Notwithstanding the absence of the medical board's findings, it is reasonable to presume that any relevant information was entered into the record of his trial.  It is also reasonable to presume that any relevant medical board findings were available as part of the record of trial that was considered by the U.S. Army Court of Military Review.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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.

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)                                         AR20120020989



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ABCMR Record of Proceedings (cont)                                         AR20120020989



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