IN THE CASE OF:
BOARD DATE: 19 August 2014
DOCKET NUMBER: AR20130022085
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 a fully honorable discharge.
2. The applicant states he had just returned from deployment to Kuwait and he was suffering from post-traumatic stress disorder (PTSD) that developed during his deployment. He was not offered any type of medical help at the time of the incident. He knows today that his actions were partly motivated by his experiences in Kuwait in a combat zone.
3. The applicant provides a half-page letter with his application.
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. After serving 3 years, 4 months and 26 days of active service as a telecommunications center operator in the Regular Army, the applicant was honorably released from active duty in the pay grade of E-4 on 15 April 1988.
3. He again enlisted in the Regular Army in the pay grade of E-4 on 14 June 1989 for a period of 4 years and assignment to Europe. He was transferred to Germany on 21 June 1989 and deployed to Kuwait during the period 3 September to 3 December 1991 in support of Operation Desert Storm.
4. On 20 January 1993, he was convicted by a general court-martial of aggravated assault on an officer and communicating a threat. He was sentenced to confinement for 1 year and a BCD.
5. On 18 March 1994, orders were published indicating the findings and sentence as approved by the convening authority had been affirmed and directed that his BCD be executed.
6. On 5 May 1994 he was discharged under the provisions of Amy Regulation 635-200 (Personnel Separation Enlisted Personnel), chapter 3, pursuant to a court-martial conviction. He served 4 years, 1 months, and 20 days of active service during his current enlistment with 275 days of time lost due to confinement by military authorities.
7. The applicants medical records were not available for review by the Board.
8. Army Regulation 635-200 governs 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
b. paragraph 3-7a states 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 states 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.
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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted. However, since his medical records are not available they are not supported by evidence of record and he provides insufficient evidence to support his contentions.
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 discharge appropriately characterizes the misconduct for which the applicant was convicted.
3. Based on the above, there is an insufficient 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 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) AR20130022085
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130022085
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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