IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130013526 


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 honorable.

2.  The applicant states:

	a.  While stationed at Fort Ord, CA, he was promoted twice and he received several letters of commendation.

	b.  His troubles began after his transfer to Germany.

	c.  He had mental problems at the time but he was never given a mental evaluation.

	d.  He did not understand the consequences of the actions taken against him due to his level of education.

	e.  He had a severe drug and alcohol problem that was never addressed.

	f.  His defense attorney was of a subpar standard because his case was one of his attorney's first cases to go to an actual trial.

	g.  During a field training exercise, he was the driver/gunner of a self-propelled cannon and he was caught by the recoil of the tube which crushed him into the back of the tank.  He suffered permanent injuries but back then you had to be quiet and deal with it.  
	h.  A woman whom he was dating (Ms. F) accused him of stealing from her but it was all a lie.  He was then tried by a court-martial for stealing from her.

	i.  His rights were violated because he was not given the chance to confront and cross-examine his accusers.

	j.  He was sent to a German prison where he was tortured badly.  He had pins pushed under his fingernails, his feet were beaten with little baseball bats, he was shackled to a brick wall, he was starved to about 70 pounds or less, and he had his teeth ripped out without pain medication.  Things were done to him that were totally inhumane.  

	k.  He did some things wrong but nothing that warranted all the things that happened to him.  He was young and did not understand and now he suffers from anxiety attacks and post-traumatic stress disorder.  

	l.  He is requesting the upgrade of his discharge to honorable in order to obtain the medical help he needs from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional evidence.  

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 was born on 9 November 1960.  He enlisted in the U.S. Army Reserve on 29 November 1978.  He attended and completed initial active duty for training and was awarded military occupational specialty 13B (Cannon Crewman).  On 10 April 1979, he enlisted in the Regular Army.  His DD Form 1966 (Application for Enlistment) indicates he earned a General Educational Development (GED) certificate prior to his enlistment in the Regular Army.  

3.  While stationed at Fort Ord, CA, he accepted nonjudicial punishment (NJP) on:

	a.  29 October 1979 for two specifications of failing to go at the time prescribed to his appointed place of duty;

	b.  3 December 1979 for making under lawful oath a false statement;

	c.  25 February 1980 for rendering a worthless check, being absent without leave (AWOL) during the period 25-28 January, and being AWOL during the period 1-15 February 1980; and

	d.  7 April 1980 for failing to go at the time prescribed to his appointed place of duty.

4.  He was reassigned to Germany on 2 December 1980.

5.  He accepted NJP on:

	a.  3 March 1981 for disobeying a lawful order from his superior noncommissioned officer and for failing to go at the time prescribed to his appointed place of duty;

	b.  13 October 1981 for leaving his place of duty (guard duty) without authority, failing to go at the time prescribed to his appointed place of duty, and for dereliction of his duties by leaving his assigned M-16 rifle and M-60 machine gun unsecured;

	c.  17 November 1981 for disobeying a lawful command from his superior commissioned officer;

6.  On 19 January 1982, he consulted with legal counsel and 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 because court-martial charges were preferred against him for offenses that could result in a punitive discharge.  He was accused of larceny, housebreaking, and possession of marijuana.

7.  His request for discharge in lieu of trial by court-martial was disapproved due to the magnitude of the charges preferred against him.

8.  A Report of Mental Status Evaluation, undated, indicates he underwent a mental status evaluation and his behavior was found to be normal, he was fully alert and oriented, his thinking process was clear, his thought content was normal, and his memory was good.  He was also found to have no significant mental illness and he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.

9.  On 16 February 1982, he was found guilty, in accordance with his pleas, by a special court-martial of larceny (stealing a stereo receiver from another Soldier), housebreaking, and possession of marijuana.  He was found not guilty of stealing from Ms. F.  The sentence consisted of confinement at hard labor for 5 months, forfeiture, and a bad conduct discharge.  

10.  On 14 October 1982, the U.S. Army Court of Military Review affirmed the findings and the sentence.

11.  On 8 March 1983, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

12.  Accordingly, he was discharged on 18 March 1983 as a result of a court-martial with a bad conduct discharge.  His DD Form 214 shows he completed 
3 years, 8 months, and 8 days of active duty service and that he accrued 90 days of lost time.

13.  There is no evidence in the applicant's military records indicating that he was suffering from a mental decease, that drugs and alcohol were the proximate cause of his misconduct, or that he was ever in a German prison or tortured at any time.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is 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.

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  

15.  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 request for an upgrade of his bad conduct discharge to honorable in order to be eligible for service provided by the VA has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for services provided by the VA.

2.  He contends that he was young at the time; however, he completed initial entry training.  This shows he was mature enough to satisfactorily serve and there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

3.  He also made several other contentions, including alcohol and drug abuse, mental issues, and torture; however, there is no evidence in his military records, and he provided none, which substantiate his contentions.  He further contends that he was never given a mental evaluation.  However, the evidence of record shows he underwent a mental status evaluation wherein he was found with no significant mental illness, mentally responsible, and able to distinguish right from wrong.  

4.  The available evidence shows that his troubles started well before he went to Germany.  His trial by court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which he was convicted.

5.  His record of indiscipline includes NJP on several occasions, a court-martial conviction for larceny, housebreaking, and possession of marijuana, and 90 days of lost time.  Based on his record of misconduct, he is not entitled to either an honorable or a general discharge.

6.  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 his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

7.  Based on the foregoing, there is no basis to grant the 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 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)                                         AR20130013526



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ABCMR Record of Proceedings (cont)                                         AR20130013526



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