IN THE CASE OF:	  

		BOARD DATE:	    19 November 2013

		DOCKET NUMBER:  AR20130002895 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests upgrade of the applicant's bad conduct discharge (BCD) to at least a general discharge.

2.  Counsel states the applicant's BCD should be changed to at least a general discharge based on the principles of clemency.  He submits several reasons.

	a.  The applicant was diagnosed with acute situational depression in September 1984 and was also observed by a behavioral science specialist for numerous stressors.  Moreover, in November 1984, he was diagnosed with an adjustment disorder with depressed mood.  The doctor noted he was not given any treatments for his recognized/diagnosed mental health issues after these diagnoses.  He requests clemency because the applicant's untreated mental health issues and substance abuse problems were mitigating factors for his misconduct while in service in that they kept him from performing his duties properly and were related to the credit problems he experienced while in the military, which led to his eventual BCD.  Accordingly, his BCD was unduly harsh because his offenses were mitigated by these other circumstances.


	b.  After he was discharged from the military the applicant was unable to hold a steady job, became homeless, and was losing his life due to his untreated mental illness and chemical dependencies.

	c.  The applicant was homeless and suffering from mental illness and chemical dependency from 1986 to 2001.

	d.  In March 2001, he entered a detox[ification] program.  He then entered a follow-up detox program.  He was also properly treated for his mental issues.  He reports that he has been drug and alcohol-free since he successfully completed these programs.

	e.  While recognizing the seriousness of his misconduct during his service, the applicant believes he has led a productive life since his discharge that warrants clemency with an upgrade of his BCD based on his post-service citizenship.

	f.  The applicant was involved in numerous exemplary post-service activities such as his outstanding community involvement, religious activities, charitable work, mentoring work, and volunteer efforts.

	g.  In 2005, the applicant founded Above Ground Unlimited, an organization devoted to fundraisers and fundraising projects/events (e.g., charity fundraising, church fundraising, athletic fundraisers, non-profit groups, etc).  Exemplary testimonials are attached.  He has also been a "Big Brother/mentor."  He has also participated in the Annual National Disability Mentoring Day as well as other events.  He is known as an honest, bright, and hardworking person.  He submits this is evidence of what kind of Soldier the applicant would have been if it were not for the problems that led to his discharge.

	h.  An upgrade to his discharge characterization will allow the applicant to receive Department of Veterans Affairs (VA) benefits after suffering without benefits for almost 30 years.  Counsel cites a case wherein it was stated an applicant had been adequately punished for his misconduct because he had been discharged without retirement benefits for almost 5 years.

	i.  It is submitted that the applicant has already suffered for almost 30 years due to the stigma of his BCD.


3.  Counsel provides:

* motion and supporting remarks on behalf of the applicant based on clemency
* exhibit book

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 received a bachelor's degree in Personnel Administration in 1976.

3.  On 27 October 1981, he enlisted in the Regular Army for a period of 3 years.  He completed initial entry training and he was awarded military occupational specialty 72G (Automatic Data Telecommunications Center Operator).

4.  On 17 January 1984, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a suspended reduction in grade, forfeiture of pay for one month, and extra duty.  He appealed his punishment and submitted matters on his behalf.  His appeal was granted in part in that the appellate authority suspended the forfeiture of pay for 90 days.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 20 April 1984, shows his commander recommended his bar from reenlistment for failing to pay just debts, poor conduct, and continuous substandard duty performance.

6.  A U.S. Army Central Personnel Security Clearance Facility letter, dated 7 May 1984, stated the applicant's security clearance was denied/revoked.


7.  On 16 May 1984, he provided a written rebuttal to his bar to reenlistment wherein he described errors and misunderstandings that made it appear he had unpaid debts, which were actually paid.

8.  On 21 May 1984, in a detailed letter to a higher level commander, his commander stated that various retail establishments had called the unit stating the applicant's accounts were still past due.  On 1 June 1984, he acknowledged that the information in the aforementioned letter was true and he would not appeal it.

9.  A charge sheet is not available for review.  However, his record contains an endorsement, dated 15 October 1984, that states the acting [battalion] commander recommended the additional charges be tried in conjunction with the original charges preferred against the applicant on 26 September 1984.  He further recommended the additional charges be tried by special court-martial empowered to adjudge a BCD.

10.  On 19 October 1984, following consultation with legal counsel , the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he understood he could request a chapter 10 discharge because of the following charges that had been preferred against him under the UCMJ, each of which authorized the imposition of a bad conduct or dishonorable discharge:

* attempted escape from confinement
* willfully disobeying a lawful order from a commissioned officer and offering violence against a commissioned officer
* willfully disobeying a lawful order from a noncommissioned officer (NCO)
* obstruction of justice

11.  A Fort Huachuca defense counsel letter, dated 22 October 1984, states that due to a conflict of interest, that office was unable to counsel the applicant on his NJP action and the ramifications of turning it down.  Counsel stated the applicant was not provided with all the documentation involved in his Article 15 and he could not be advised when he went to Fort Bliss, TX, for counsel.  He stated had the applicant been advised of the ramifications of refusing the Article 15, he would have rejected it.  Counsel requested a meeting with the separation authority prior to any final action taken on that matter. 

12.  On 24 October 1984, his commander recommended disapproval of the applicant's request for a discharge for the good of the service.  The commander 


stated the applicant had been allowed 10 days and given considerable time off to seek both civilian and military legal counsel.  The applicant was made aware several times by different service members of the possible punishment given under a field grade Article 15 as opposed to a court-martial.  He was provided with all necessary documents that he failed to take with him when seeking legal counsel.

13.  On 24 October 1984, by endorsement, an intermediate commander stated in effect that on 21 September 1984 he read the applicant the charges against him and his rights under Article 15, UCMJ.  This was done in the presence of Sergeant Major B and First Lieutenant G (commander of Headquarters and Headquarters Company).  He further stated that due to the fact that no one at the Fort Huachuca Trial Defense Office would counsel the applicant due to conflict of interest, he allowed him to seek counsel at Fort Bliss.  Upon the applicant's return, he again read the applicant the charges, his rights, and asked the applicant if he had seen defense counsel.  He then asked the applicant for his decision and the applicant stated he wanted a court-martial.

14.  On 24 October 1984, another commander recommended disapproval of the applicant's request for discharge for the good of the service.  He stated that since refusing to accept the Article 15, the applicant had conducted himself with flagrant disregard to good order and discipline and had acquired new and far more serious charges that had caused them to confine the applicant pending court-martial.

15.  A DA Form 2496 (Disposition Form), subject:  Retention of (applicant's name and Social Security Number) past ETS (Expiration of Term of Service)), dated
26 October 1984, states the applicant would be retained beyond his ETS service because he was pending a special court-martial. 

16.  On 2 November 1984, the separation authority disapproved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10.

17.  A DA Form 3822-R (Report of Mental Evaluation), dated 31 January 1985, shows the applicant had the mental capacity to understand and participate in the [separation] proceedings, he was mentally responsible, and he met service retention requirements.


18.  On 19 November 1984, before a special court-martial he was found guilty of:

* failing to repair on 27, 28, and 29 August 1984
* disobeying a lawful order of a superior NCO on 12 September 1984
* disobeying a lawful order of a superior NCO on 21 September 1984
* disobeying a lawful command of a superior commissioned officer on 21 September 1984
* breaking restriction on 21 September 1984
* offering violence to a superior commissioned officer on 4 October 1984

19.  He was sentenced to reduction to private (PV1)/E-1, confinement at hard labor for 5 months, and a BCD.  The sentence was approved and, except for the part of the sentence extending to a BCD, ordered executed.

20.  Special Court-Martial Order Number 63, issued by the U.S. Army Correctional Activity, Fort Riley, KS dated 14 March 1986, directed that Article 71(c) having been complied with, the BCD portion of the sentence would be executed.

21.  On 25 March 1986, he was discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of court-martial with a BCD.  His
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  His record confirms he earned no individual awards and it documents no acts of valor, significant achievement, or service warranting special recognition.  It also shows he completed 4 years and 23 days of creditable active service with time lost from 2 October 1984 through 3 February 1985.

22.  He provides the following in support of his recent achievements and health:

	a.  the following education-related documents:

* Marketing Certificate from Hofstra University in December 2003
* Master of Business Administration degree in May 2005
* Certificate in Entrepreneurship in 2007
* letter of acceptance into the Doctor of Philosophy in Information Studies Program for the Fall 2007 semester


	b.  diagnoses effective February 2003 of: 

* partner relational problem
* recurrent major depressive disorder, in full remission
* physiological cocaine dependence, sustained full remission
* physiological cannabis dependence, sustained full remission
* physiological alcohol dependence, sustained full remission

	c.  Above Ground Unlimited related documents including examples of its fundraising activities.

23.  Counsel cites an ABCMR docket number wherein it was noted "applicant had been a good citizen and discharge upgraded to a general discharge" and an Army Discharge Review Board (ADRB) docket number wherein it was noted "outstanding post-service accomplishments in academics warranted an upgrade to a general discharge" as precedents for granting relief in the applicant's case.  These two cases were administrative discharges.

	a.  The ABCMR case was based on differing punishments for two Soldiers in which one received only NJP for the same offense for which the applicant was recommended for referral to a special court-martial empowered to adjudge a BCD.  The only difference in the two Soldiers' cases appears to have been that the applicant was under the jurisdiction of authorities at a different Army post than the other Soldier.  Additionally, it was noted the applicant had no other record of disciplinary actions in his record, and the installation Staff Judge Advocate had noted his character of service was "Outstanding."  For that reason the Board found the applicant's punishment to be too harsh compared to the punishment the other Soldier received resulting in the Board's decision to upgrade the applicant's under other than honorable conditions discharge to a general discharge.

	b.  The ADRB determined in the referenced case that the characterization of service was too harsh, and as result, it was inequitable.  The board found the applicant’s post-service accomplishments (achievements in academics) and the circumstances surrounding his absence without leave (i.e., extraordinary family situation), mitigated the discrediting entries in his service record.  Accordingly, the ADRB voted to grant partial relief in the form of an upgrade of the characterization of service to general, under honorable conditions.  However, the board determined that the reason for discharge was both proper and equitable.


24.  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.

25.  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.  Counsel's contentions and submissions were carefully considered.  However, the evidence of record does not support the applicant's request for an upgrade based on clemency.

2.  He was convicted of failing to repair, disobeying a lawful command of a superior commissioned officer, disobeying a lawful order of a superior NCO, breaking restriction, and offering violence to a superior commissioned officer.  His conviction and sentence by special 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 BCD until after his conviction and sentence had been reviewed and affirmed.


3.  The results of his discharge-related mental evaluation were unremarkable.  Further, any mitigating factors related to any alleged substance abuse problems or untreated mental health issues the applicant may have had during his military service would have been considered during the above proceedings.

4.  It is unfortunate that he may have been unable to hold a steady job and he was homeless after his discharge.  It is noted that he reports at about 15 years after his discharge he entered a detox program, that he was treated for mental issues, and that he has been drug and alcohol-free since he successfully completed these programs.  His post-service education accomplishments, as well his involvement in other post-service activities such as his community involvement, religious activities, charitable work, mentoring work, and volunteer efforts are an indication he now endeavors to lead a productive life.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR; therefore, any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs (VA).

6.  Each separation case is considered on its own merits; therefore, the handling of another case has no bearing on the propriety or equity of the discharge proceedings in the applicant’s case.  Although the discharges of the applicants in the cases cited by counsel were upgraded, the circumstances differed in that both cited cases were administrative discharges as opposed to court-martial sentences.  Additionally, in one case the applicant had an otherwise outstanding service record and the other Soldier involved in the same offense received a less severe punishment resulting in an inequity.  In the other case, the ADRB determined the characterization of service was inequitable, given that the circumstances surrounding the applicant's absence without leave (extraordinary family situation) and his post-service accomplishments (achievements in academics) mitigated the discrediting entries in his service record.  Accordingly, the board voted to grant partial relief in the form of an upgrade to a general discharge.  However, the board determined that the reason for discharge was both proper and equitable.

7.  After a thorough and comprehensive review of the applicant’s military service record and post-service activities, given his undistinguished record of military service and coupled with the seriousness of the offenses for which he was convicted, clemency would be inappropriate in this case.


8.  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.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130002895



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ABCMR Record of Proceedings (cont)                                         AR20130002895



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