IN THE CASE OF:  	  

		BOARD DATE:  29 January 2015	  

		DOCKET NUMBER:  AR20140009389 


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 discharge to honorable.

2.  The applicant states at the time of his discharge he was being treated for anxiety, depression, and post-traumatic stress disorder and his medical conditions were not properly considered.

3.  The applicant provides a self-authored statement.

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 20 July 1998.  After completing training he was awarded military occupational specialty 91K (Medical Lab Specialist).
3.  His record contains limited information in regard to the discharge and his medical records are not available for review.

4.  General Court-Martial Order Number 6, dated 14 June 2001, issued by Headquarters, U.S. Army Medical Department Center and School and Fort Sam Houston, Fort Sam Houston, TX, shows the applicant was convicted of violating:

* Article 107, making false official statements
* Article 121, larceny
* Article 130, housebreaking
* Article 134, breaking restriction

5.  That part of his sentence pertaining to forfeiture of all pay and allowances and confinement for 9 months was approved and, except for the part of the sentence extending to a BCD, was ordered executed.

6.  General Court-Martial Order Number 256, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, dated 30 October 2002, announced the sentence had been affirmed.  Article 71(c) having been complied with, the BCD part of the sentence was to be executed.

7.  The applicant's DD Form 214 shows he was discharged on 7 February 2003.  He received a BCD.

8.  The applicant provides a statement in which he contends that he was black-balled and not properly represented during his court-martial proceedings.  Specifically, he was:

* denied food and threatened to be killed
* forced to put kiwi (boot polish) over his eye brows
* denied his sign-on bonus after graduation
* accused of being a drug dealer
* advised by his counsel not to say anything in his defense because it could result in 3 years in prison
* assaulted on camera by the superintendent of the confinement facility
* unable to support his son because he was not paid properly
* denied the right to walk with his advanced individual training class and forced to make up an examination that others did not
* harassed by the military police
* forced to quit other employment
* forced to live in the dorms with bats, rats, gnats, and roaches
* denied Army Relief funds and a pay advance
* bribed into coming on the installation resulting in his arrest
* threatened by correction officers with extra time on his sentence if he did not permit sexual searches
* released from confinement and told to go to a homeless shelter
* denied Department of Veterans Affairs medical treatment
* denied his GI Bill education benefits which he paid into

9.  His record does not show that he was under treatment or received a profile for any physical and mental health condition during his period of service.

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.

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

	a.  	Chapter 3 provides that a Soldier will be given a punitive discharge (dishonorable discharge or BCD) 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.

	b.  Paragraph 3-7a provides 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.

	c.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  His contentions are noted; however, he has not provided any documentary evidence or convincing argument showing he did not commit the crimes for which he was convicted.  Further, there is no evidence to corroborate that he suffered from any medical condition that led to his misconduct.  The available evidence shows that his 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.

2.  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.

3.  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)                                         AR20140009389



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ABCMR Record of Proceedings (cont)                                         AR20140009389



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