IN THE CASE OF:
BOARD DATE: 27 February 2014
DOCKET NUMBER: AR20130011935
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, in effect, an upgrade of his bad conduct discharge (BCD).
2. The applicant states his circumstances did not warrant the severe disciplinary action he received. He was being treated by the Army for post-traumatic stress disorder, depression, and anxiety at the time he was discharged.
3. The applicant provides copies of third-party statements of support, commendatory documents, and his medical treatment records.
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 applicants records, though somewhat incomplete, show he enlisted in the Regular Army on 25 July 2002 and he completed his training as a construction engineer supervisor at Fort Leonard Wood, Missouri.
3. On 16 February 2006 while stationed in Hawaii, he was convicted pursuant to his pleas by a general court-martial of the wrongful possession of drug paraphernalia, four specifications of stealing property from the Post Exchange valued in excess of $500.00 for each offense, making a false official statement to law enforcement officials, and fleeing from law enforcement officials. He was sentenced to confinement for 38 months, forfeiture of all pay and allowances, and a BCD. However, the convening authority approved only so much of the sentence that provided for 12 months of confinement, forfeiture of all pay and allowances, and a BCD.
4. On 26 July 2007, orders were published announcing the findings as approved by the convening authority had been affirmed and that his BCD should be executed.
5. Accordingly, the applicant was discharged pursuant to a duly-reviewed and affirmed court-martial conviction on 7 September 2007. He completed 4 years, 3 months, and 26 days of active service and had 275 days of lost time due to confinement.
6. A review of the available evidence shows the applicant was diagnosed as having an adjustment disorder with depressed mood; however, there is no evidence to show he could not distinguish right from wrong or that his diagnosed condition was the cause of his misconduct.
7. 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 contentions and supporting documents have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offenses.
2. The applicant's trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations and the BCD appropriately characterizes the misconduct for which he was convicted. As such, the type of discharge directed and the reasons therefor appear to be appropriate considering the available facts of the case. There is an insufficient evidentiary basis for granting the applicant an upgrade of his BCD to any other character of service.
3. Additionally, 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. Absent any mitigating factors, the type of discharge directed and the reasons therefor were appropriate. As a result, clemency is not warranted in this case.
4. Accordingly, there appears to be no basis to grant his request for an upgrade of his BCD.
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 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) AR20130011935
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130011935
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2011 | 20110011364
Application for correction of military records (with supporting documents provided, if any). The applicant requests upgrade of his bad conduct discharge (BCD) to a general discharge. Except for the BCD, the sentence would be executed.
ARMY | BCMR | CY2010 | 20100007530
The applicant requests his bad conduct discharge (BCD) be upgraded to a general under honorable conditions discharge (GD). When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The applicant's conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which the applicant was convicted.
ARMY | BCMR | CY2010 | 20100009715
The applicant requests upgrade of his bad conduct discharge (BCD) to either an honorable or a general discharge. Accordingly, on 14 September 1987, the applicant was discharged with a BCD. The applicant's medical records do not contain any evidence that he was reported with or treated for any emotional or mental disorder while he served on active duty.
ARMY | BCMR | CY2013 | 20130019067
When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. He was not given the BCD until after his conviction and sentence had been reviewed and affirmed by the U.S. Army Court of Military Review. However, even if such evidence were available, it would not mitigate the seriousness of the offenses for which he was tried and convicted and, in any case, could have been raised during the...
ARMY | BCMR | CY2009 | 20090013830
In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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. The evidence of record does show the applicant was convicted by a GCM and...
ARMY | BCMR | CY2014 | 20140003895
Application for correction of military records (with supporting documents provided, if any). Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board is not empowered to set aside a conviction. The applicant contends that his military records should be corrected by changing his BCD to uncharacterized and changing the reason for his separation because his crime was an isolated incident and he has an otherwise clean record.
ARMY | BCMR | CY2012 | 20120001788
Application for correction of military records (with supporting documents provided, if any). The applicant states he was discharged with a bad conduct discharge because he wrote $1,400.00 in bad checks in order to support his drinking problem. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants 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.
ARMY | BCMR | CY2014 | 20140021063
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. The evidence of record shows the applicant was convicted by a GCM and he received a BCD. However, it does not mitigate the serious misconduct that led to his court-martial...
ARMY | BCMR | CY2012 | 20120004162
On 5 February 1971, the applicant was discharged under the provisions of Army Regulation 635-204, by reason of SPCM with a bad conduct discharge. The applicant provides military medical treatment record that shows he was interviewed by military medical personnel on 8 June 1970, and showed borderline schizophrenia. There is no evidence of record or independent evidence provided by the applicant showing he suffered from a physical or mental condition that would have supported his separation...
ARMY | BCMR | CY2010 | 20100008053
The applicant states it has not been a day since his court-martial that he has not regretted the decision he made to go absent without leave (AWOL) without discussing his reasons with his chain of command. 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. The available evidence shows the applicant was convicted by a general court-martial of missing movement.