IN THE CASE OF:	  

		BOARD DATE:  18 June 2013

		DOCKET NUMBER:  AR20120021973 


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 his bad conduct discharge be upgraded to a general discharge under honorable conditions and that he receive veterans benefits.

2.  The applicant states he was diagnosed with alcohol dependency, post-traumatic stress disorder (PTSD), and depressive disorder along with narcissistic personality traits.  He also suffers from long-term anxiety and depression since childhood that was not properly treated or diagnosed.  He is receiving disability social security due to medical diagnoses that the Army failed to diagnose or treat.

3.  The applicant provides an Office of Disability Adjudication and Review Decision from the Social Security Administration, dated 18 May 2010.

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 5 January 1970, he enlisted in the Oregon Army National Guard.  He completed a period of active duty from 13 February to 20 June 1970 during which he completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 19 April 1972, he was involuntarily ordered to active duty for a period of 
19 months and 7 days effective 1 June 1972.

4.  On 21 December 1972, he was assigned to Company B, 1st Battalion, 
26th Infantry in Germany.

5.  On 9 January 1974, he was convicted by a general court-martial for:

* stealing from Josef N_______, by means of force and violence and putting him in fear and against his will, a 1961 Mercedes-Benz 220S automobile, of a value of about 500.00 Deutsch Marks, a wallet containing a value of about 70.00 Deutsch Marks, and a wristwatch of a value of about 80.00 Deutsch Marks, the property of Josef N_______
* kidnapping Josef N_______ by wrongfully and unlawfully detaining him in a moving motor vehicle against his will

6.  His sentence consisted of forfeiture of two-thirds of his pay for 2 years and 
6 months, confinement for 2 years and 6 months, and to be discharged from the service with a bad conduct discharge.

7.  Headquarters, U.S. Disciplinary Barracks, General Court-Martial Order Number 161, dated 11 February 1975, stated the applicant's sentence had been affirmed and ordered his sentence to be executed.

8.  On 23 April 1975, the applicant was discharged with a bad conduct discharge. He had completed 1 year, 4 months, and 14 days of active service.  He had 549 days of time lost.

9.  His service medical records were not available for review.

10.  He provided an Office of Disability Adjudication and Review Decision from the Social Security Administration, dated 18 May 2010.

	a.  He was examined by Dr. A____, PhD, in March 2010 and assessed with alcohol dependence, chronic PTSD, depressive disorder secondary to alcohol dependence, antisocial and narcissistic personality traits, and chronic body pain.

	b.  A comprehensive neuropsychological report conducted by Dr. L____, PhD, concluded the applicant had a cognitive disorder, not otherwise specified "possibly due to a combination of his traumatic brain injury and substance dependence," but with likely exacerbations due to depression and continued substance abuse, dysthymic disorder, alcohol dependence in partial remission per applicant report, and cocaine dependence and methamphetamine abuse in remission by applicant report.

	c.  Based on the application for a period of disability and disability insurance benefits and for supplemental security income the applicant was determined to have been disabled since 1 September 2006.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge.  Chapter 11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was 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 applicant's expressed need to receive veterans benefits is noted.  However, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other veterans benefits should be addressed to the Department of Veterans Affairs.

2.  His service medical records were not available for review.  The physical and mental conditions discussed in the Social Security Administration's Office of Disability Adjudication and Review Decision were diagnosed over 30 years after his discharge from the service.  There is no substantive evidence any of these conditions were present during his period of service.

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

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.

5.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general discharge under honorable conditions.

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)                                         AR20120021973



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ABCMR Record of Proceedings (cont)                                         AR20120021973



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