IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150001357 


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 that his bad conduct discharge (BCD) be upgraded. 

2.  The applicant states due to his mental state at the time he takes full responsibility for his personal actions.  At the time of his discharge he was dealing with mental and personal issues.  Without an upgrade he will no longer be able to receive Department of Veterans Affairs medical care.

3.  The applicant provides no additional supporting documentation.

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 on 24 February 1998, completed training, and was awarded military occupational specialty 11B (Infantryman).  
3.  With completion of his initial entry training, he was awarded the Army Service Ribbon and assigned to duty in Hawaii.  

4.  On 6 April 2000, a general court-martial found the applicant guilty, under the Uniform Code of Military Justice (UCMJ), of the following charges and specifications —

* Charge I, Article 91 —

* Specification 1: On or about 1 September 1999, having received a lawful order from a noncommissioned officer (NCO) to stand at ease, an order which it was his duty to obey, did willfully disobey the same
* Specification 2: On or about 1 September 1999, was disrespectful in language to an NCO who was then in the execution of his office
* Specification 3: On or about 1 September 1999, strike an NCO by shoving and punching him in the face with a closed fist

* Charge II, Article 95 — 

* Specification: On or about 8 January 2000, resisted arrest by a person authorized to apprehend

* Charge IIl,  Article 107 — 

* Specification 1: On or about 8 November 1999, with intent to deceive, presented to an NCO an official individual sick slip, which sick slip was totally false
* Specification 2: On or about 8 November 1999, with intent to deceive, made to an NCO an official statement, which statement was totally false 

* Charge IV, Article 128— 

* Specification 2: On or about 8 January 2000, unlawfully choke a specialist with both hands

* Charge V, Article 134 —

* Specification 1: On or about 1 September 1999, wrongfully communicated to an NCO a threat to injure him by breaking his neck
* Specifications 2-7: dishonorably failed to maintain sufficient funds on six occasions

5.  The recommended sentence was forfeiture of all pay and allowances, reduction to private one (E-1), confinement for 12 months, and a bad conduct discharge.

6.  The applicant is shown to have been confined from 6 April 2000 through 11 March 2001 (340 days).

7.  On 21 March 2001, the court-martial approval officer approved the court-martial findings and sentence and directed that, except for the BCD, the sentence be executed.  

8.  The applicant was placed on excess leave pending completion of his court-martial review for the period of 3 April 2001 through 27 August 2004 (3 years, 4 months, and 25 days (1243 days)).

9.  On 31 December 2003, the U.S. Army Court of Criminal Appeals directed that Specifications 3 through 7 of Charge V be consolidated into Specification 2 of Charge V.  It also appears that the sentence to confinement and loss of all pay and allowances was modified to confinement for 195 days and loss of all pay and allowances for 195 days.  The charges, findings, and sentence, as modified, were affirmed.

10.  On 29 April 2004, General Court-Martial Order Number 91 stated that, with the incorporation the U.S. Army Court Criminal Appeals amendments, it affirmed the guilty findings and sentence.  Article 71(c) having been complied with the BCD was directed to be executed.  

11.  The applicant was discharged on 27 August 2004 with a BCD.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows 5 years, 6 months, and 24 days of net active service with 3 years, 4 months, and 25 days served in an excess leave status and 340 days of lost time.

12.  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 court-martial conviction.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  The ABCMR 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.  

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:
	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  
	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  A Soldier will be given a bad conduct discharge 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.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant is shown to have 5 years, 6 months, and 24 days of active service, his actual period in an active capacity, when his period of excess leave is deducted from his total net service, was only 2 years, 1 month, and 29 days.

2.  Between 1 September 1999 and 8 January 2000, the applicant committed 14 separate acts of misconduct ranging from writing bad checks to assaults on an NCO and a military policeman.  

3.  The applicant has provided no evidence that he was suffering from any mental, emotional, psychological or psychiatric problems or that if he was that it was so severe as to render him unable to tell right from wrong and adhere to the right.  Further, he would have had the opportunity to raise his mental state in his defense during his trial by court-martial.

4.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  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.  The character of the discharge is commensurate with the offenses for which he was discharged and is appropriate for the applicant's overall record of military 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 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)                                         AR20150001357





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ABCMR Record of Proceedings (cont)                                         AR20150001357



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