IN THE CASE OF:	  

		BOARD DATE:  5 November 2013

		DOCKET NUMBER:  AR20130005125 


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 that his bad conduct discharge be upgraded to general, under honorable conditions.

2.  The applicant states his punishment did not fit the crime.  Nonjudicial punishment (NJP) would have been fine.

3.  The applicant provides copies of:

* Letter from his spouse (8 pages in large print)
* Listing of applicant's previous doctors
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three letters of support
* Gwinnett County Police Department Criminal History Request Form, dated 26 September 2012
* Psychiatric records, dated between June 2006 and the present
* Doctor's letter, dated 1 March 2013, concerning the applicant's daughter
* VA Form 21-534 (Application for Dependency and Indemnity Compensation) submitted by the applicant's daughter, dated 1 March 2013
* Form SSA-24 (Application for Survivors Benefits) submitted by applicant's daughter, dated 1 March 2013
* DD Form 4 (Enlistment/Reenlistment Document, dated 17 March 1980
* NJP, dated 23 June 1981
* NJP, dated 30 December 1981
* NJP, dated 11 February 1983
* General Court-Martial Order Number 48, 9th Infantry Division, Fort Lewis, WA, dated 9 June 1983
* General Court-Martial Order Number 13, U.S. Army Correctional Activity, Fort Riley, KS, dated 10 January 1984
* DA Form 2-1 (Personnel Qualification Record)
* DA Form 2-2 (Insert Sheet to DA Form 2-1 (Record of Court-Martial Conviction))
* Standard Form 88 (Report of Medical Examination), dated 13 March 1980
* Standard Form 93 (Report of Medical History), dated 13 March 1980
* Standard Form 603 (Dental Health Record) Military service

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 9 April 1980, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 19D (Cavalry Scout).

3.  In August 1980, the applicant was assigned duty as a scout driver with 1st Battalion, 35th Armored Regiment, located in the Federal Republic of Germany.  

	a.  On 1 February 1981, he was advanced to private first class, pay grade
E-4.

	b.  On 23 June 1981, he accepted NJP for disobeying a lawful order (continuation page not available).

	c.  On 17 December 1981, he accepted NJP for being disrespectful in language on two separate occasions.



4.  On 30 April 1982, the applicant was assigned to Fort Lewis, WA.  On 
11 February 1983, he accepted NJP for being derelict in the performance of his duties.

5.  General Court-Martial Order Number 48, 9th Infantry Division, Fort Lewis, WA, dated 9 June 1983, shows the applicant was convicted of violating Article 134 (two specifications) under the Uniform Code of Military Justice (UCMJ) for wrongful possession of some amount of marijuana and for wrongful distribution of some amount of marijuana.

6.  The applicant pled guilty and he was found guilty.  His sentence was adjudged on 23 May 1983 and it included:

	a.  a forfeiture of all pay and allowances;

	b.  confinement at hard labor for 1 year; and

	c.  a bad conduct discharge.  

7.  On 9 June, 1983, the convening authority approved the sentence, except for the part extending to a bad conduct discharge, and ordered the sentence to be executed.

8.  General Court-Martial Order Number 13, U.S. Army Correctional Activity, Fort Riley, KS, dated 10 January 1984, announced the sentence had been affirmed.  Article 71(c) having been complied with, and the sentence to confinement having been completed, that portion of the sentence pertaining to a bad conduct discharge was to be executed.

9.  The applicant's DD Form 214 shows he was discharged from the Regular Army on 3 February 1984 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

10.  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.

11.  On 1 March 2013, the applicant's spouse wrote a letter of support wherein she contends the applicant's misconduct and criminal actions were due to his inability to help himself.  She argues that his mental condition should have been evaluated.  She believes he suffered mentally from a head injury sustained when he fell from a truck.  Since his discharge the applicant had been receiving mental health treatment.  His physician stated he suffers from post-traumatic stress disorder as a result of his trauma in the military 20 years earlier.  The applicant is unemployable and he has no feeling of worth.  She wants this case reviewed at the highest level and intends to pursue this case throughout the applicant's lifetime.

12.  On 13 June 2011, a friend of the applicant wrote a letter of support wherein he states the applicant has always displayed a high degree of integrity, responsibility and ambition.  He has displayed good judgment and character.  He is very dependable and has volunteered on numerous occasions to lead the neighborhood watch program.  The applicant is a trusted friend and an outstanding resident in his community.

13.  On 30 July 2011, the applicant's pastor wrote a letter of support wherein he states he has known the applicant about 20 years.  He has often attended worship services and was always pleasant and joyful.  However, he has been missed for the past few years possibly due to his relocation.  He is a kind and gentle person.

14.  On 31 December 2012, a first lieutenant, U.S. Army Reserve, wrote a letter of support wherein he states the applicant moved into his neighborhood in 2003.  He has been reliable and has a lot of integrity.  He has been an active member of the Home Owners Association.  He has been a great neighbor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to general under honorable conditions because the punishment did not fit the crime.

2.  Trial by court-martial was warranted due to the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant's records show that in 1981 he received two NJPs, one for disobeying lawful orders and another for being disrespectful.  In 1983 he accepted a third NJP for dereliction of duty.  His subsequent misconduct was of a criminal nature consisting of possessing and distributing marijuana and this resulted in his court-martial.  These events clearly out-weigh the applicant's earlier "good service."  Accordingly, the overall quality of his service does not support any mitigation of his characterization of service.

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 seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  Furthermore, there is no substantive evidence showing the applicant suffered from a medical/mental condition that was in anyway responsible for his misconduct and criminal behavior.  The support letters provided by the applicant’s friend/neighbor appear to contradict his spouse’s assessment of his demeanor.

6.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130005125



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ABCMR Record of Proceedings (cont)                                         AR20130005125



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