BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130019480 


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 (BCD) be upgraded to general, under honorable conditions.

2.  The applicant states he was convicted at a general court-martial while stationed in Panama.  His offense was not violent.  He neglected his duties and allowed misplacement of government property.  He was incarcerated and then given a BCD.  No one is more remorseful than he is because it cost him a very promising Army career.  However, he has been paying in many ways both mentally and physically, for his mistake even after his release from incarceration.  He has struggled with his loss during all of these years.  Now he needs his country's help to secure whatever years he may have remaining.  He contends that he has undergone physical therapy as a result of an injury to his right forearm that occurred while an instructor at the School of the Americas.  Also, he has been diagnosed with having post-traumatic stress disorder (PTSD) as a result of the same injury.  He has sought many avenues of treatment; however, he has not achieved any results.  His arm is not 100 percent due to the injury and he cannot afford medical treatment.  Therefore, by obtaining this upgrade, he can seek medical assistance and continue treatment for his PTSD.  He understands that it has been many years since the incident.  He argues that during his years as a civilian, he has been a productive member.  He has remained law abiding and devoted to God and family.  He is asking the Board for a favorable decision so that he can continue to live life and strive to better himself and his family.

3.  The applicant provides 3 pages of medical notes dated 28 May, 9 June, and 
7 July 1981, concerning a gunshot wound to his right forearm.
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 6 January 1978, the applicant enlisted in the Regular Army.  He completed his initial training as a small arms repairer.

3.  On or about 24 September 1979, the applicant departed with his unit for duty in Panama.

4.  On 9 December 1983, the applicant accepted nonjudicial punishment for being drunk on duty and for failure to go to his appointed place of duty at the prescribed time.

5.  General Court-Martial Order Number 13, 193rd Infantry Brigade, dated 
14 May 1984, shows the applicant was convicted of violating Article 108 (Military property loss, damage, destruction, disposition), three specifications, by wrongfully disposing of a total of five pistols.  He was also charged with violation of Article 134 (Altering public records) by altering a DA Form 2405 (Maintenance Request Register) and DA Form 2407 (Maintenance Request).

	a.  His sentence, adjudged on 15 March 1984, included a BCD, confinement at hard labor for 4 years; forfeiture of $450.00 pay per month for 4 years; and reduction to pay grade E-1.

	b.  The convening authority approved the sentence, but the execution of that portion thereof adjudging confinement in excess of 30 months was suspended for 30 months.

6.  On 23 July 1984, the United States Army Court of Military Review found the approved findings of guilty and the sentence correct in law and fact.  On the basis of the entire record, this court affirmed the findings of guilty and the sentence.
7.  General Court-Martial Order Number 853, Fort Leavenworth, KS, dated 
7 December 1984 announced the sentence had been affirmed.  Article 71(c) having been complied with, the sentence was to be executed.

8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 16 January 1985.  He received a bad conduct characterization of service.

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 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.

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

	a.  Paragraph 3-7a provides 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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to general, under honorable conditions because he needs his country's help to secure whatever years he may have remaining by obtaining medical treatment for his service connected injury.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant has admitted to committing the crimes for which he was convicted.  However, he argues that his actions were not violent in nature.

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.  Given the seriousness of the applicant's misconduct, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the above, the applicant’s request should be denied.

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)                                         AR20130019480





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ABCMR Record of Proceedings (cont)                                         AR20130019480



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