BOARD DATE:	  25 February 2014

		DOCKET NUMBER:  AR20130011520 


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 discharge be upgraded to a general or an honorable discharge.

2.  The applicant states the situation that led to his discharge would not have occurred if his psychiatric condition had been diagnosed and he had been on medication. 

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* a letter from the Social Security Administration (SSA)

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’s record shows that he enlisted in the Regular Army on 
18 October 1978.  

3.  The applicant's record contains a copy of Headquarters, 1st Armored Division, Special Court-Martial (SPCM) Order Number 122, dated 5 August 1980, that shows he pled guilty and was found guilty of larceny of a Pioneer turntable, amplifier, cassette deck, tuner, a twelve inch black and white television, and two Sansui speakers valued at about $1,500.00 and cooking utensils valued at about $100.00 on about 22 May 1980.  He was sentenced to reduction to private/E-1, confined to hard labor for 3 and ½ months, a forfeiture of $298.00 pay for 3 and ½ months, and to be discharged with a bad conduct discharge (BCD).  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

4.  The U.S. Army Court of Military Review affirmed the findings and the sentence on 21 October 1980.

5.  The applicant's record contains a copy of Headquarters, U.S. Disciplinary Barracks, SPCM Order Number 36, dated 27 January 1981, which shows that Article 71(c) having been complied with, the applicant's sentence was affirmed and the BCD was ordered duly executed.

6.  On 6 March 1981, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 11, as a result of court-martial.  He completed a total of 2 years and 13 days of creditable active service with 127 days of lost time.

7.  His record is void of any evidence showing he was diagnosed with a psychiatric condition during his period of service.

8.  The applicant submitted a decision from the SSA, Office of Disability Adjudication and Review, dated 28 October 2010, which shows he was determined to be disabled under the Social Security Act by reason of schizophrenia, bipolar disorder, a history of head injury, and polysubstance abuse, in current remission.

9.  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 change a discharge due to matters which should have been raised in the appellate process, 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.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

11.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge as 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that a psychiatric condition impaired his ability to make decisions and contributed to his misconduct which ultimately caused him to receive a BCD.  However, there is no evidence nor did he submit any evidence that shows he sought help or informed his chain of command of these issues.  In view of the circumstances in this case, the applicant has not established a basis for clemency.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  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 record of service, the seriousness of the offenses for which he was convicted, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

3.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130011520



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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