IN THE CASE OF:	  	

		BOARD DATE:	  2 January 2014

		DOCKET NUMBER:  AR20130007534 


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 dishonorable discharge.

2.  The applicant states he is requesting upgrade of his discharge in order to receive aid in addressing his emotional and mental health issues caused by his childhood and military experiences.  He shouldn't have been accepted into the active military service due to mental and emotional health issues he has had since childhood that have not been diagnosed or addressed.  He should have been screened out for these conditions during his enlistment processing.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* doctor's statement
* Oakwood medical printout 

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 15 April 1981, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he held was private first class/E-3.

3.  A Standard Form (SF) 93 (Report of Medical History), dated 10 March 1981, and an SF 93, dated 14 October 1983, show he marked that he had never been treated for a mental condition.

4.  A DA Form 2-1 (Personnel Qualification Record) shows he arrived in Korea on 28 July 1981.

5.  Headquarters, 2nd Infantry Division, General Court-Martial Order Number 4, dated 1 February 1983, shows the following:

	a.  the applicant pled not guilty and was found guilty of wrongfully having marijuana in his possession; stealing an M-60 machine gun, 200 rounds of 7.62 millimeter ammunition, 19 rounds of 5.56 millimeter ammunition, and stealing one case of individual combat meals; and

	b.  pursuant to his plea, he was found guilty of leaving his sentinel post before he was regularly relieved.

	c.  he was sentenced to confinement at hard labor for 15 months, to be reduced to private/E-1, forfeiture of all pay and allowances, and to be dishonorably discharged.  The sentence was adjudged on 25 October 1982.  The sentence was approved.

6.  U.S. Army Combined Arms Center and Fort Leavenworth, General Court-Martial Order Number 266, dated 13 April 1984, shows that pursuant to General Court-Martial Order Number 301, $275 pay per month of the sentence to forfeiture of all pay and allowances was suspended, effective 1 February 1983, until such time as the sentence was ordered into execution, with provisions for automatic remission.  The dishonorable discharge was ordered executed.

7.  On 27 April 1984, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as the result of a court-martial.  He was given a dishonorable discharge.  The DD Form 214 he was issued shows he completed 1 year, 11 months, and 6 days of creditable active service.  Item 29 (Dates of Time Lost During This Period) of this form contains the entry "820910-831016."

8.  The applicant provided two statements from his doctor.  One statement indicated the applicant carried a diagnosis of bipolar disorder with psychotic features as well as post-traumatic stress disorder dating from early childhood.  Based upon experiences the applicant related to the doctor, the doctor stated it was probable that the applicant had an undiagnosed problem that resulted in an assignment that he was not able to perform properly.  The doctor also indicates a delay in relief in this case affects the applicant's healthcare benefits, which the doctor believes impedes a diagnosis that has life-threatening consequences.  Granting relief in this case may permit the applicant to receive appropriate diagnostic and therapeutic care.

9.  Army Regulation 635-200, paragraph 3-10, provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence was ordered duly executed.

   a.  Paragraph 3-7a provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	b.  Paragraph 3-7b provided that a general discharge is 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.

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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's and his doctor's contentions and submissions were carefully considered.  However, the evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  He was issued a dishonorable discharge pursuant to the approved sentence of a general court-martial for wrongfully possessing marijuana, stealing, and leaving his sentinel post before he was regularly relieved.  The appellate review was completed and the affirmed sentence ordered duly executed.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

3.  His record is void of any evidence of any mental or behavioral condition during his tenure of service.  He denied any mental health problems upon his enlistment.  Further, any mental health problems that he believes resulted in his misconduct should have been brought up during the judicial/appellate process.  Further, discharges are not upgraded solely for the purpose of establishing eligibility for benefits from another agency, such as eligibility for health care.

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.  The applicant's entire military record was taken into consideration and given the seriousness of the offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

5.  Based on the foregoing, there is an insufficient basis for which to upgrade the applicant's discharge.

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)                                         AR20130007534



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ABCMR Record of Proceedings (cont)                                         AR20130007534



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