BOARD DATE:	  7 January 2015

		DOCKET NUMBER:  AR20140007054 


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 his dishonorable discharge be upgraded to a discharge under other than honorable conditions.

2.  The applicant states he began looking out for another Soldier in 1981 and noticed he had black eyes, bruises, and a busted lip.  The other Soldier was the roommate of a Soldier who was Muslim by religion.  A few weeks later his unit went to the firing range where the Soldier and the Muslim-American Soldier were on the same firing order.  When the range control announced commence firing he witnessed the Muslim-American Soldier leave his firing position and shoot a fellow Soldier.  When he dropped to the ground he witnessed him shoot another Soldier.  He laid on the ground and heard the shots continue, a total of six Soldiers were shot and killed.  After the gun fire ceased the Muslim-American Soldier came down the firing range with his hands in the air to surrender.  He thought the Muslim-American had shot all six Soldiers, but later found out the Soldier he was looking out for had shot some of them.

3.  After witnessing the event at the firing range his life began a downward spiral. He did not drink before, but after the incident he became a full-fledged alcoholic and later used many different recreational drugs.  Not knowing what post-traumatic stress disorder (PTSD) was in 1981 and being a Soldier he thought it was normal and did not seek help for his depression, anxiety, and isolation.  He was self-medicated every opportunity he could.  After a couple of years into his addictions, he became involved in illegal activities to support his habit.  After 
18 months in the stockade, he was dishonorably discharged by a court-martial.

4.  He learned of PTSD in 2013 after numerous rehabilitation stints and penitentiary time.  He was diagnosed with PTSD in 2013 because of the traumatic incident in 1981.  He asks for an upgrade to an under other than honorable conditions discharge because the traumatic incident in 1981 caused his life to be altered.

5.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) with an effective date of 1 June 1979
* DD Form 214 with a separation date of 24 January 1985 
* a letter, dated 13 March 2014, from National Personnel Records Center (NPRC), St. Louis, MO

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.  He previously served 3 years in the Regular Army and received an honorable discharge.  On 2 October 1980, he enlisted in the Regular Army, in pay grade 
E-4, for 4 years.

3.  He was assigned to Headquarters and Headquarters Company, 2nd Engineer Battalion in Korea from 16 October 1980 to 12 October 1981.  On 14 May 1981, received nonjudicial punishment (NJP) for:

* behaving with disrespect toward a commissioned officer
* failing to obey a lawful order from a commissioned officer

4.  On 5 June 1981, an incident occurred during live fire training at Ingram Range outside Camp Casey, South Korea.  Two shooters had shot and killed four Soldiers.

5.  He was assigned to Headquarters and Headquarters Battery, Division Artillery at Fort Lewis, WA from 22 October 1981 to 31 August 1982.

6.  On 4 October 1982, he was assigned to Company A, 304th Signal Battalion, in Korea.  On 13 April 1983, he received NJP for two specifications of failing to obey a lawful order from a non-commissioned officer.

7.  On 31 January 1984, he pled guilty and was found guilty by a general court-martial of:

* failing upon lawful request to present valid and bona fide information or documentation showing continued possession or lawful disposition of controlled items brought into Korea duty-free on 21 June 1983
* using a letter of authorization number 011797 issued by other than competent authority in January 1983
* using a letter of authorization number 025204 issued by other than competent authority in February 1983

8.  On 15 March 1984, the convening authority approved only so much of the sentence that provided for:

* forfeiture of $446.00 pay per month for twelve months
* reduction to the grade of E-1
* confinement for 1 year
* dishonorable discharge from the Army

9.  On 17 August 1984, the findings of guilty and the sentence were affirmed by the U.S. Army Court of Military Review.

10.  His service medical records show no diagnosis for PTSD.  The records do not show treatment for depression, anxiety.  On 16 October 1984, he was given a mental status evaluation.  The examiner found he met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness). The examiner further determined he was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in board proceedings.

11.  On 16 January 1985, his dishonorable discharge was ordered executed and on 24 January 1985 he was dishonorably discharged as a result of his court-martial conviction on 31 January 1984.  His net active service was 3 years, 
7 months, and 1 day.  He had 258 days of time lost.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 provided that a Soldier was given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

	b.  An other than honorable conditions discharge could be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial.  An under other than honorable conditions discharge was directed only by one of the following:

		(1)  a commander exercising general court-martial authority

		(2)  a general officer in command who has a judge advocate or legal advisor available to his/her command

		(3)  higher authority

13.  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.  He contends the trauma he experienced in 1981 caused his life to be altered and his discharge should be upgraded because he suffered with PTSD.

2.  His service medical records do not show a diagnosis of PTSD and there is no record of treatment for depression or anxiety.  He has not provided a diagnosis of PTSD.

3.  Based on his previous tour of duty in Korea and the fact that he had been in Korea for over a year on his second tour, it is reasonable to conclude he was aware of the regulations concerning controlled items brought into Korea.  In addition, he used a letter of authorization issued by other than competent authorities  on two occasions.  Therefore, the offenses he was convicted of show premeditated misconduct rather that a spur of the moment decision resulting from a temporary lapse in judgment.  Further, his misconduct had started before the shooting incident.

4.  The evidence shows that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.

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.  

6.  Based on the foregoing, there is an insufficient basis upon which to upgrade the applicant's dishonorable discharge.

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)                                         AR20140007054



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ABCMR Record of Proceedings (cont)                                         AR20140007054



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