BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140015395 


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 correction of his records to show an upgrade of his under other than honorable conditions discharge to fully honorable based on medical reasons or, in the alternative, that his military service be voided in its entirety.

2.  The applicant states that he should not have been authorized to enlist in the U.S. Army because he did not possess the required mental qualifications.  In addition, at the time, he was diagnosed as schizophrenic (hearing voices), and admitted to the Mobile Mental Health Center in Mobile, AL, in a patient status.

   a.  He states that he entered the Army in February or March 1977.  He was assigned to Fort Leavenworth, KS where a psychologist, Doctor (Major) F____, prescribed him 350 mg of Thorizine (twice daily), which caused him to cry every night while he was in lock-down.  He pled with officers and noncommissioned officers (NCOs) to help him get out of the Army.

   b.  In 1978, he was assigned to Fort Bliss, TX.  Soldiers who were "privileged" beat him up one day and he did not know what to do.  A couple of other Soldiers helped by getting him out of the situation.

   c.  He was then sent to Fort Leavenworth, KS, where some other Soldiers tried to kill him.  He concludes that he did not belong in the Army.

3.  The applicant provides no documentary evidence in support of his application.

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.  A review of the applicant's DD Form 1966 (Application for Enlistment – Armed Forces of the United States), prepared and certified by the applicant on 
3 February 1977, shows he was residing with his mother at XXXX Cayouga Avenue, Prichard, AL, at the time of his enlistment processing.  It also shows the Army recruiter and the guidance counselor certified with their signatures that the applicant fulfilled the legal and policy requirements for enlistment in the U.S. Army.

3.  A review of the Standard Form (SF) 89 (Report of Medical History) and SF 88 (Report of Medical Examination) prepared by the applicant and the examining physician to document the applicant's entrance physical examination, on 
4 February 1977, shows the applicant denied ever having been treated for a mental condition or having been a patient in any type of hospital.  The SF 88 also shows the examining physician found the applicant qualified for enlistment.  On 
1 March 1977, the physician verified the applicant had no disqualifying defects.

4.  On 4 February 1977, the applicant enlisted in the U.S. Army Reserve for a period of 6 years.  On 1 March 1977, he further enlisted in the Regular Army for a period of 3 years with enlistment options for training in military occupational specialty 24U (Hercules Missile Electronics Mechanic) and assignment to U.S. Army Europe.

5.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* striking a Soldier by kicking him in the face on 12 March 1977
* assaulting a Soldier by hitting him in the face on 26 March 1977
* willfully disobeying a lawful order from an NCO and leaving his place of duty on 9 April 1977
* pulling a Soldier out of bed and onto the floor and being disrespectful in language toward an NCO on 17 April 1977

6.  A review of the applicant's military personnel records revealed that he failed to complete basic combat training.

7.  Headquarters, U.S. Army Air Defense Center, Fort Bliss, TX, Special Court-Martial Order Number 19, dated 9 August 1977, shows the applicant was tried at a special court-martial.

a. He was found guilty of the charge and specifications of unlawfully:

* striking a Soldier by hitting him in the head with his fist, on 5 May 1977
* striking a Soldier by pushing and hitting him on the head with his fist, on 5 May 1977
* burning a Soldier in the ear with a lit cigarette, on 12 May 1977
* striking a Soldier in the head with his hand, on 16 May 1977
* committing an assault upon a Soldier by striking him on the leg with a means likely to produce grievous bodily harm, on 16 May 1977
* committing assault upon a Soldier by striking him in the side (with a rock), thereby inflicting grievous bodily harm upon him (a fractured rib), on 17 May 1977

	b.  On 23 June 1977, he was sentenced to confinement at hard labor for
6 months, a forfeiture of $249 for 6 months, and a bad conduct discharge.

	c.  On 9 August 1977, the convening authority approved the sentence and ordered it duly executed.  He also directed the record of trial be forwarded to The Judge Advocate General of the Army for a Court of Military Review (CMR).  

8.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, Special Court-Martial Order Number 15, dated 15 February 1978, shows the applicant was tried at a special court-martial.

	a.  He was found guilty of the charges and specifications of:

* wrongfully resisting the efforts of four Soldiers, then having and in the execution of military police duties, to subdue and return the applicant to his cell on 14 October 1977
* assaulting a Soldier, then having and in the execution of military police duties, by striking him in the face with his fist on 14 October 1977
* wrongfully communicating a threat to injure a Soldier by saying:  "If I punch your face in then you'll give me my stocking cap," or words to that effect

   b.  On 29 November 1977, he was sentenced to confinement at hard labor for
5 months and a forfeiture of $200 pay for 5 months.

	c.  On 15 February 1978, the convening authority approved the sentence and ordered it duly executed, except for the execution of the portion thereof adjudging confinement at hard labor in excess of 4 months was suspended until completion of the appellate review of the applicant's previous court-martial.

9.  The applicant's court-martial case was reviewed by the U.S. Army CMR.  On 10 March 1978, the CMR affirmed the findings of guilty and the sentence.

10.  A review of the SF 89 and the SF 88 prepared by the applicant and the examining physician to document the applicant's separation physical examination on 23 March 1978 shows the applicant denied ever having been treated for a mental condition or having been a patient in any type of hospital.  The SF 88 also shows the examining physician found him qualified for release.

11.  Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, Special Court-Martial Order Number 170, dated
6 October 1978, confirmed the applicant's court-martial sentence was affirmed.  (The portion of the sentence pertaining to confinement had been served).  The provisions of Article 71(c) having been complied with, the sentence was ordered duly executed.

12.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows, on 14 June 1979, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, as a result of court-martial and issued a Bad Conduct Discharge Certificate.  He completed 1 year, 5 months, and 7 days of creditable active service.  He had 310 days of lost time due to being in confinement.

13.  The applicant submitted an application to the Army Discharge Review Board (ADRB) for review of his discharge.  On 26 May 1982, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable.  Accordingly, the ADRB denied the relief requested by the applicant.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states a member will be given a dishonorable or a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered executed.

	a.  Chapter 3, 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.  Chapter 3, 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.

15.  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 that his discharge should be upgraded based on medical reasons or, in the alternative, his military service should be voided in its entirety because he was not mentally qualified for enlistment and he did not belong in the U.S. Army.

2.  Records show at the time of the applicant's enlistment processing he denied ever having been treated for a mental condition or having been a patient in any type of hospital.  Records also show the examining physician found the applicant medically qualified for military service.  In addition, both the U.S. Army recruiter and the guidance counselor verified the applicant's eligibility for enlistment in the U.S. Army.  Thus, the evidence of record refutes the applicant's contentions that he was not medical and/or mentally qualified for enlistment in the U.S. Army.

3.  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 applicant's rights were protected throughout the court-martial process.
4.  Records show that at the time of separation processing the applicant denied ever having been treated for a mental condition or having been a patient in any type of hospital.  Records also show the examining physician found the applicant medically qualified for discharge.  Accordingly, he was discharged based on the approved sentence of his court-martial.

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.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140015395



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ABCMR Record of Proceedings (cont)                                         AR20140015395



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