BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130016642 


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 upgrade of his bad conduct discharge (BCD) to a general discharge.

2.  He states that he has post-traumatic stress disorder (PTSD) which caused him to go absent without leave (AWOL).

3.  He provides a supporting statement and DA Forms 2166-6 (Enlisted Evaluation Reports (EERs)).

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 enlisted in the Regular Army on 28 February 1978. 

3.  On 29 November 1988, he was convicted by a general court-martial of:

* Being AWOL from 25 July 1988 to 27 August 1988
* Being AWOL from 27 August 1988 to 1 September 1988
* Escaping from custody on 27 August 1988
* Wrongfully making and uttering dishonorable checks on 23 May 1988, 
19 June 1988, 20 June 1988, 21 June 1988, 23 June 1988, and 25 July 1988 

4.  The court sentenced him to reduction to the grade of E-1, a forfeiture of $500.00 pay per month for 24 months, confinement for 2 years, and a BCD.  The convening authority approved the sentence of a BCD, confinement for 2 years (confinement in excess of 9 months was suspended for 12 months with provision for automatic remission), forfeiture of $500.00 pay per months for 24 months, and reduction to the grade of E-1.  The U.S. Army Court of Military Review affirmed the findings and sentence on 12 September 1989.  

5.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with a BCD on 8 January 1990 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  He had completed 10 years, 13 months, and  27 days of total active service with the periods from 25 July to 26 August 1988, 28 to 31 August 1988, and 1 September 1988 to 5 April 1989 listed as lost time.

6.  The supporting statement from the applicant's spouse recalled the applicant finding his uncle dead under a car in the garage after a car he was working on fell on him.  She also recalled the emotional stress the applicant underwent after she did not join him on a permanent change of station move in 1988.  She opined that the applicant felt betrayed by a wife he loved and by a country he swore to protect and serve.  She offered that the applicant went AWOL because of the stress of his marital situation and being an Army ranger.  She stated that the applicant had assignments in Grenada, Panama, and Iran.  She concluded that she has filed a claim with the Department of Veteran Affairs for PTSD.

7.  The applicant's record does not contain a separation physical or a mental evaluation.  His record is also void of any evidence that shows he was diagnosed with PTSD while he was in the military.

8.  The applicant provided four EERs that show he continuously performed his duties in an outstanding manner from the March to October 1982; November 1985 to August 1986, September 1986 to February 1987, and March to September 1987 while performing duties first as an instructor and later as a drill sergeant.  
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or a BCD.  It provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence must be ordered duly executed.

10.  Army Regulation 635-200, 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.  

11.  Court-martial convictions stand as adjudged or as 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 Army Board for Correction of Military Records (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 argues, in effect, that his discharge should be upgraded because his indiscipline was based on PTSD. 

2.  There is no evidence and he did not provide any to show that he was diagnosed with PTSD.  In fact his EERs suggest that he performed his duties in an outstanding manner while performing duties first as a instructor and later as a drill sergeant.  The evidence of record further shows he was convicted by a special court-martial which was warranted by the gravity of the offenses charged at the time.  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.  He was given a BCD pursuant to an approved sentence of a special court-martial.  All requirements of law and regulation were met and his rights were fully protected.

4.  Based on his overall record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.
5.  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.  Therefore, given his offense 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.

6.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20130016642





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ABCMR Record of Proceedings (cont)                                         AR20130016642



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