BOARD DATE:	 2 September 2014 

		DOCKET NUMBER:  AR20140001469 


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 he has a pre-existing traumatic brain injury (TBI)/mental condition.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 7 November 1989. 


3.  On 16 September 1990, he was convicted by a general court-martial of:

* Committing assault upon a child under age of 16 years on 17 May 1990
* Unlawfully striking a child under the age of 16 on 16 May 1990
* Being absent without leave from 12 to 18 May 1990 and 22 June to
11 July 1990

4.  The court sentenced him a forfeiture of all pay and allowances, confinement for nine months, and a BCD.  The U.S. Army Court of Military Review affirmed the findings and sentence on 20 June 1991.  

5.  On 7 February 1991, the applicant signed DA Form 3081-R (Periodic Medical Examination (Statement of Exemption)) stating that he underwent a medical examination in conjunction with his separation in November 1990.  However, a separation physical and/or a mental evaluation are not contained in his available record.  His record is also void of any evidence that shows he was diagnosed with TBI and/or a mental condition while he was in the military.

6	.  His DD Form 214 shows he was discharged with a BCD on 26 September 1991 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  He had completed 1 year, 1 month, and 29 days of total active service with the periods from 7 to 11 June 1990, 22 June to 10 July 1990, and 11July 1990 to 6 February 1991 listed as lost time.

7.  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.

8.  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.  

9.  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 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 a pre-existing TBI/mental condition.  There is no evidence and he did not provide any to show that he was diagnosed with a TBI/mental condition.  Therefore, his argument that his medical condition led to his indiscipline is not supported by the available evidence.  In any case, this contention could have been raised during the court-martial and appellate process and conclusively adjudicated.

2.  The evidence of record shows he was convicted by a general 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 general 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 offenses 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)                                         AR20140001469





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ABCMR Record of Proceedings (cont)                                         AR20140001469



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