IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140010290 


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 an upgrade of his bad conduct discharge to honorable.

2.  The applicant states the character of his discharge is inequitable because it was based on one isolated incident in 69 months of service with no other adverse actions and he received an honorable discharge for his first term of enlistment.

	a.  His guilty plea stemmed from a physiological (may mean psychological) war in his life:  an overwhelming fear of separation, isolation, and the anxiety of losing his family.  He believes that 31 years of retribution during this life-altering experience is extreme punishment.  During this period of retribution, he has obtained an associate's degree in business administration and a bachelor's degree in business management.  He needs a more favorable and competitive background to pursue his new-found career path.  He requests an upgraded discharge, not only because of the need to obtain gainful employment but to reverse a lifetime sentence that he must endure.

	b.  He idolized his father and planned to join the Army to emulate him.  He was raised by his mother during his adolescence and vowed never to split up his family the way his father had.  His father's passing affected him deeply.  He was overwhelmed, confused, and depressed.

	c.  He relates his behavioral condition to a "military family lifestyle syndrome" as opposed to post-traumatic stress syndrome or disorder.  He states that having some kind of syndrome or going through a mental crisis distorts judgment and affects one's character and ambitions, especially at the young age he was during his court-martial proceedings.  There were limited resources to identify causes of syndromes at the time.  Perhaps a "better diagnosis" would have produced more favorable results rather than a trial by court-martial or bad conduct discharge.  Having said that, it would have been reasonable to identify the reason a highly-decorated Soldier who hadn't been in any trouble in the past and did not have a pattern of bad behavior would violate the Uniform Code of Military Justice by unbecoming conduct.

	d.  He states the Smith and Wesson weapon had a problem that was undiscovered until a few years ago.  It has been known to automatically discharge on its own if handled.  Some had a tendency to fire unexpectedly.  It was later revealed that some had a faulty mechanism allowing the firing pin to slip.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) with continuation page
* DD Form 214 (Certificate of Release or Discharge from Active Duty) (2 copies)
* letter of selection for drill sergeant duty from the U.S. Total Army Personnel Command, undated
* U.S. Army Noncommissioned Officer Academy Drill Sergeant School Certificate of Graduation, dated 3 March 1978 (2 copies)
* two Army correspondence course reports, dated 27 October 1978 and 5 December 1978
* DD Form 256A (Honorable Discharge Certificate), dated 18 February 1980
* 2nd endorsement from Headquarters, 1st Squadron, 3rd Armored Cavalry Regiment, Fort Bliss, dated 4 December 1980, subject:  Letter of Appreciation
* 3rd endorsement from Headquarters, 1st Squadron, 3rd Armored Cavalry Regiment, Fort Bliss, dated 18 December 1980, subject:  Letter of Appreciation
* Headquarters, U.S. Army Air Defense Center and Fort Bliss, Special Court-Martial Order Number 22, dated 2 June 1981
* Headquarters, U.S. Army Air Defense Center and Fort Bliss, Special Court-Martial Order Number 12, dated 3 May 1982
* DD Form 259A (Bad Conduct Discharge Certificate), dated 18 May 1982
* Veterans Administration Certificate of Eligibility for Loan Guaranty Benefits, dated 3 October 1986
* Lehigh County Community College Associate in Arts Degree in Business Administration, dated May 1987
* Veterans Administration Certificate of Eligibility for Loan Guaranty Benefits, dated 18 February 2003

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 18 August 1976 at 17 years of age, less than 2 months before his 18th birthday.  He was discharged on 18 February 1980 for immediate reenlistment and he reenlisted on 19 February 1980.

3.  Headquarters, U.S. Army Air Defense Center and Fort Bliss, Special Court-Martial Order Number 22, dated 2 June 1981, shows he pled guilty and was found guilty of the following charges and specifications:

* charge I – violation of Article 134, Uniform Code of Military Justice (UCMJ) –

* specification 1 – wrongfully and unlawfully making a false statement under oath on or about 16 November 1980 that he did not own a shotgun, he did not have a shotgun in the troop area, and he did not shoot at the door to quarters
* specification 2 – wrongfully and willfully discharge a firearm, to wit, a shotgun at a Soldier's military quarters under circumstances such as to endanger human life on or about 16 November 1980

* charge II – violation of Article 108, UCMJ – damaging government property through neglect and without proper authority by shooting the door to military quarters on or about 16 November 1980, said damage being in the sum of about $50.00
* charge III – violation of Article 92, UCMJ – wrongfully violating a lawful general regulation, to wit, having a shotgun in his possession

4.  He was sentenced to confinement at hard labor for 4 months, forfeiture of $250.00 pay per month for 4 months, reduction to the lowest enlisted grade (private/E-1), and a bad conduct discharge.  The court-martial convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 45 days, reduction to the rank/grade of private/E-1, and forfeiture of $250.00 pay per month for 4 months.  The record of trial was forwarded to the Staff Judge Advocate General of the Army for review by a Court of Military Review.

5.  Headquarters, U.S. Army Air Defense Center and Fort Bliss, Special Court-Martial Order Number 12, dated 3 May 1982, shows the sentence to a bad conduct discharge, confinement at hard labor for 45 days, forfeiture of $250.00 pay per month for 4 months, and reduction to the lowest enlisted rank/grade of private/E-1 were affirmed as corrected by the U.S. Army Court of Military Review Court-Martial Correcting Certificate, dated 31 December 1981.  The provisions of Article 71c having been complied with, the sentence was ordered duly executed.  The portion of the sentence pertaining to confinement had been served.

6.  On 18 May 1982, he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11.

7.  His DD Form 214 shows he completed 5 years, 9 months, and 1 day of active service.  He was awarded or authorized the Marksman Marksmanship Qualification Badge, Army Good Conduct Medal, Army Service Ribbon, and Overseas Service Ribbon.  His service was characterized as "bad conduct discharge."

8.  His records contain no evidence indicating he was diagnosed with an adjustment disorder of any kind which affected his ability to perform his military duties or required treatment.

9.  He provided various certificates and letters attesting to his service and educational achievements.

10.  Army Regulation 600-8-22 (Military Awards) states the Army Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency, and fidelity.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of active Federal military service.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-13a stated 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 1-13b stated 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.

	c.  Paragraph 1-13c stated a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.

	d.  Chapter 11 provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.  Bad conduct discharges result in expulsion from the Army.

12.  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 contends his bad conduct discharge should be upgraded because it was based on an isolated incident and he had an honorable discharge from his first enlistment.

2.  He contends that having some kind of "military family lifestyle syndrome" may have distorted his judgment and affected his character and ambitions, especially at the young age he was during his court-martial proceedings.  He contends that a "better diagnosis" may have produced more favorable results rather than a trial by court-martial or bad conduct discharge.  He believes it would have been reasonable to identify the reason a highly-decorated Soldier who hadn't been in any trouble in the past and did not have a pattern of bad behavior would violate the Uniform Code of Military Justice by unbecoming conduct.

3.  His records contain no evidence indicating he was diagnosed with an adjustment disorder of any kind which affected his ability to perform his military duties or required treatment.

4.  His records show he was awarded the Army Good Conduct Medal for honorable service during his first term of enlistment along with standard service ribbons.  There is no evidence that he was awarded any other individual decorations supporting his contention that he was highly-decorated.

5.  The evidence shows he was over 22 years of age at the time of his court-martial proceedings.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their terms of military service without indiscipline or misconduct.

6.  He was found guilty of multiple violations of the Uniform Code of Military Justice involving unauthorized possession and discharge of a firearm under circumstances such as to endanger human life.  The gravity of these charges warranted his trial by court-martial.  His contention that it would have been reasonable to identify the reason a Soldier who hadn't been in any trouble in the past and did not have a pattern of bad behavior would violate the Uniform Code of Military Justice by unbecoming conduct relates to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

7.  His conviction and discharge were effected in accordance with applicable legal statutes and regulations and his bad conduct discharge appropriately characterizes the misconduct for which he was convicted.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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 applicant's undistinguished record of service and absent any mitigating factors, clemency is not warranted in this case.

8.  There is no evidentiary basis for upgrading his bad conduct discharge to honorable or any other character of service.



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 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)                                         AR20140010290



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ABCMR Record of Proceedings (cont)                                         AR20140010290



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