IN THE CASE OF:	  

		BOARD DATE:	  9 October 2014

		DOCKET NUMBER:  AR20140004031 


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
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show service in Haiti

2.  The applicant states he deployed to Haiti about a month and a half after returning from Korea.  He was sent back to Fort Stewart, GA, from Haiti due to mental issues.  He further states he was going through a divorce and suffering from post-traumatic stress disorder (PTSD).    

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 enlisted in the Regular Army on 13 April 1988.  His records contain no evidence which show he ever served in Haiti; however, evidence does show he served in:

* Germany from 12 October 1988 to 11 October 1991
* Southwest Asia from 28 October 1990 to 25 March 1991
* Korea from 26 July 1993 to 22 July 1994

3.  His record contains General Court-Martial Order Number 24, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, dated            27 July 1995, which shows he pled guilty and was found guilty of violating Articles 81, 112a, and 121 of the Uniform Code of Military Justice (UCMJ) for:

   a.  Conspiracy to commit larceny on or about 2 April 1995. 

   b.  Wrongful use of cocaine on divers occasions between on or about 1 March 1995 and 4 April 1995.

   c.  Larceny of property of a value of more than $100.00, on or about 2 April 1995.

4.  On 12 May 1995, the following sentence was adjudged:  to forfeit $500.00 a month for 10 months, to be reduced to private/E-1, to be confined for 10 months, and to be discharged from the service with a bad conduct discharge. 

5.  His record contains General Court-Martial Order Number 30, issued by Headquarters, U.S. Army Garrison, Fort Dix, NJ, dated 18 March 1996,  that states in a general court-martial case of the applicant, the sentence of confinement for 10 months (accused to be credited with 42 days confinement against the sentence of confinement), reduction to the rank of private/E-1,  forfeiture of $500.00 pay per month for 10 months, and a bad conduct discharge, adjudged on 12 May 1995, as promulgated in Corrected General Court-Martial Order Number 24, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, GA, dated 27 July 1995, has been affirmed.  Article 71(c) having been complied with, the bad conduct discharge will be executed.

6.  His record contains a DD Form 214 that shows he was discharged on
14 April 1996 under the provisions of Army Regulation 635-200, chapter 3, as
a result of court-martial with a bad conduct discharge.  He completed 7 years, 5 months, and 6 days of creditable active service.
7.  His record is void of any evidence and he has not provided any evidence that shows he was ever diagnosed with or treated for PTSD or any other mental disorder while serving in the Army.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

9.  Army Regulation 635-200 provides for the following characters of service:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

10.  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 records contain insufficient evidence and he further submits insufficient evidence to show he served a period of service in Haiti.

2.  The applicant's contention that his discharge should be upgraded due to his suffering from PTSD has been carefully considered.  However, there is insufficient evidence to support this claim.

3.  His record is void of any evidence and he has not provided any evidence that shows he was ever diagnosed with or treated for PTSD or any other mental condition while serving in the Army.  He provides no evidence now to show he has been diagnosed with a service-connected PTSD or other mental condition.  His medical condition was an issue that could have been raised during trial or the appellate process.

4.  The applicant's trial by a general 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 discharge appropriately characterizes the misconduct for which he was convicted.

5.  He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

6.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

7.  His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  Therefore, he is not entitled to 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)                                         AR20140004031





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ABCMR Record of Proceedings (cont)                                         AR20140004031



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