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		IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140013686 


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 bad conduct discharge (BCD) be upgraded to an honorable discharge.

2.  The applicant states he was terrorized by four white men in the Army who attempted to oppress him by calling him racial slurs and threatening to "low crawl him in the mud and beat him."  He defended himself against them and ended up being arrested and sent to Fort Leavenworth Federal Penitentiary for 13 months. He served 10 months and 25 days.  He was unfairly treated and did not have the proper legal assistance at the time.  His lawyer did not even appeal the court decision at his request.  He was classified as Special Forces and utilized his trained abilities to defend himself against his own Army military colleagues because they were attempting to hurt him.  Other than this incident, he was not in any trouble other than going absent without leave (AWOL) for approximately 
300 days.  At that time he was psychiatrically disabled.  He was treated for a psychiatric illness in 1974 for bipolar and schizophrenia while in the military at Fort Leavenworth Federal Penitentiary.  He was treated with seroquel, trazodone, and thoradiazine.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty) with an effective date of 25 March 1977
* a health record, dated 24 April 2014, from Maricopa Integrated Health System
* a letter, dated 20 August 2014, from the Department of Veterans Affairs (VA)
* a letter, dated 21 January 2015, from the Social Security Administration
* a medical record, progress notes, dated 7 January 2015

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.  On 18 January 1974, he enlisted in the Regular Army.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Field Artillery Crewman).  On 8 July 1974, he was assigned to 
Battery A, 3rd Battalion, 18th Field Artillery at Fort Sill, OK.

3.  On 19 August 1974, he accepted nonjudicial punishment (NJP) for being derelict in the performance of his duties in that he negligently failed to maintain accountability for his M16 rifle.

4.  On 21 April 1975, he accepted NJP for being AWOL from 5 - 9 April 1975 and from 18 - 19 April 1975.

5.  On 1 October 1975, court-martial charges were preferred against the applicant for:

* being AWOL from 1 August - 22 September 1975
* by means of force and violence and putting him in fear, steal from a specialist four (SP4), against his will, U.S. currency of a value of about $7.00
* by means of force and violence and putting him in fear, steal from a private first class (PFC), against his will, U.S. currency, of a value of about $90.00

6.  On 5 January 1976, he departed AWOL and he was dropped from the rolls.  On 2 March 1976, he was apprehended by the Federal Bureau of Investigation and returned to military control.  He was placed in pre-trial confinement on 
4 March 1976.

7.  On 10 May 1976, he was tried before a general court-martial.  He pled guilty and was found guilty of:

* being AWOL from 1 August - 22 September 1975
* being AWOL from 5 January - 1 March 1976
* by means of force and violence and putting him in fear, stealing from a SP4, against his will, U.S. currency of a value of about $7.00
* by means of force and violence and putting him in fear, stealing from a PFC, against his will, U.S. currency, of a value of about $90.00

8.  His sentence consisted of:

* reduction to the grade of private/pay grade E-1
* forfeiture of all pay and allowances
* confinement at hard labor for 14 months
* discharge from the Army with a BCD

9.  On 26 November 1976, the convening authority approved the sentence and forwarded the record of trial to The Judge Advocate General of the Army for review by a Court of Military Review.  On 3 March 1977, his sentence to a BCD was ordered executed.

10.  On 25 March 1977, he was discharged as a result of a court-martial with a bad conduct discharge.  His DD Form 214 shows he had completed 1 year, 7 months, and 29 days of net active service.  He had 548 days of lost time.  His service medical records were not available for review.

11.  The medical record, dated 24 April 2014, from the Maricopa Integrated Health System shows he was taking seroquel, 300 milligram (mg) tablet and 
100 mg tablet.  A note indicated these were the same as other medications prescribed for him.  He was instructed to read the instructions carefully and ask his doctor or other care provider to review them with him. 

12.  The medical record, dated 7 January 2015, indicated he needed to refill his medication.  His history noted he was jobless and homeless living in a shelter since 16 December 2014.  He had been disabled since 2001 receiving Supplemental Security Income with a past psychiatric history of schizophrenia, taking seroquel and wellbutrin since 2001.
13.  Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 11 established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

14.  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 he was being terrorized by four white men and was forced to defend himself.  He contends he was classified Special Forces and he used his trained abilities to defend himself.  However, he was court-martialed for two specifications of being AWOL and two specifications of robbery.  He was assigned to Battery A, 3rd Battalion, 18th Field Artillery.  There is no evidence of the applicant being classified as Special Forces.

2.  He contends he was psychiatrically disabled at the time.  The medical evidence he provided shows treatment and medications he was taking at the time and he was seeking refills for his medication.  However, these records do not show he was diagnosed with a psychiatric condition at the time of his offenses, court-martial, or discharge.  His service medical records were not available for review.

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

5.  The applicant's entire record of service was considered.  Given the seriousness of the offenses for which he was convicted, his record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis to support the applicant’s request to upgrade his discharge at this time.

6.  Based on the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20140013686



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ABCMR Record of Proceedings (cont)                                         AR20140013686



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