IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016936 


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 character of service of bad conduct.

2.  The applicant states:

   a.  His mother died during his active duty service and he was greatly depressed by the event.  He requested to talk with a counselor about the feelings, but he was told to suck it up and drive on as everyone's mother will die. He began to self-medicate with alcohol to deal with his feelings.  He also began to argue with his direct supervisors because of his depressed state.  His insubordination, difficulty controlling his emotions, and self-medication resulted in his issuance of a bad conduct characterization.  He believes that he was not allowed a proper grieving period after his mother died to be an effective Soldier.  He truly believes that if this event had not occurred or he was given appropriate treatment from this travesty in his life, he would have retired through the military. He was unaware that there was a process to upgrade his character of service.

   b.  Losing his mother taught him to overcome and adapt.  He had hoped to die for his country, not be where he currently is.  He has died twice in his world with the loss of two mothers and fathers in a life time.  He is an American who graduated from basic and advanced individual training, so he was a Soldier.  He loves his America and humbly requests a discharge upgrade.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two character letters.

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 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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 1 June 1983, for 3 years, with prior service in the U.S. Army Reserve Delayed Entry Program.  He was awarded military occupational specialty 11C (indirect fire infantryman).  He was advanced to pay grade E-3 on 1 December 1983.  He served in Korea from 15 September 1983 through 14 September 1984.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for:

   a.  14 February 1984 – violating a lawful general regulation, willfully disobeying lawful commands from his superior commissioned officer and superior noncommissioned officer, and failing to goat athe time prescribed to his appointed place of duty on 31 January 1984.  His punishment included a reduction to pay grade E-2, a forfeiture of pay and 14 days of restriction and extra duty.

   b.  9 March 1984 – breaking restriction on 25 February 1984.  His punishment included a reduction to pay grade E-1, a suspended forfeiture of pay for 30 days, and 14 days of restriction and extra duty.

4.  On 9 April 1984, he was convicted by a special court-martial of three specifications each of wrongfully distributing marijuana.  He was sentenced to a reduction to pay grade E-1, a forfeiture of pay per month for 3months, 3months of confinement at hard labor, and a bad conduct discharge.

5.  On 31 May 1984, the convening authority approved the sentence, forwarded the record of trial to the Judge Advocate General of the Army for review by a Court of Military Review, and authorized his placement in confinement.


6.  A DA Form 4187 (Personnel Action), dated 8 June 1984, shows his duty status was changed from present for duty to military confinement.

7.  Orders Number 118-312, issued by Headquarters, 7th Infantry Division on 18 June 1984, assigned him to the U.S. Army Personnel Control Facility.

8.  On 18 July 1984, he requested voluntary excess leave without pay and allowances as a result of his conviction by a special court-martial.

9.  On 8 September 1984, his chain of commander recommended that he not be allowed to remain on active duty while awaiting his punitive discharge.

10.  On 14 September 1984, the convening authority placed him on excess leave without pay and allowances.

11.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

12.  There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case.

13.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, Special Court-Martial Order (SPCMO) Number 145, dated 18 December 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority affirmed the applicant's sentence and ordered it executed.

14.  After his release from confinement, he was discharged in accordance with SPCMO Number 145, in pay grade E-1, on 11 January 1985.  His service was characterized as bad conduct.  His DD Form 214 shows in:

* Item 18 (Remarks) - he was separated on temporary records and Soldier's affidavit
* Item 25 (Separation Authority) - SPCMO #145, dated 18 December 1984

15.  He provided the following:

   a.  A letter, dated 19 June 2014, wherein the applicant's counselor stated that the applicant was doing well in his recovery process and using Refusal Skills to avoid relapse.  The applicant had dealt with his issues of abandonment by his mother, losing his adopted mother while in the military, and the guilt he experienced regarding his inability to be there for her during her dying days.  The applicant had learned triggers for his drug use and identified the negative consequences for his behavior.  Therefore, she recommended an upgrade of his discharge.

   b.  A letter, dated 21 August 2014, wherein the New Mexico Veterans Integration Centers' case manager stated that he had been working with the applicant for the past two months in an effort to help him maintain stable housing and avoid homelessness.  He was not aware of all the circumstances related to the applicant receiving a bad conduct discharge some 29 years ago.  Nevertheless, he recommended that the applicant be provide an opportunity to have his discharge upgraded.  The applicant openly voiced he had made mistakes in his past and was working to resolve those issues and improve the quality of his life.

16.  There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   b.  Paragraph 3-7b - 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.

18.  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 change a court-martial 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 evidence of record shows the applicant was convicted by a special court-martial and was sentenced to a bad conduct discharge.  His discharge was affirmed and it appears after his release from confinement he was discharged in accordance with SPCMO Number 145 on 11 January 1985.

2.  He provided no evidence to show the charges were not valid and his discharge was unjust.  There is no error or injustice apparent in his record.  There is also no evidence his court-martial was unjust or inequitable.  He has not provided sufficient evidence or argument to show his discharge should be upgrade to a general or fully honorable discharge.  He was properly discharged in accordance with pertinent regulations with due process and with no violation of his rights.

3.  Any redress by this Board of the finality of a court-marital 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 offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20140016936





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016936



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1