IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20150001585 


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 under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD).

2.  The applicant states, to the best of his recollection, the following events are mitigating factors that he believes should merit an upgrade of his UOTHC discharge.

	a.  Between 1974 and 1975, at the age of 20 years old, he suffered a traumatic loss when his father passed away and his sisters were murdered in 1975.

	b.  His request to go home on leave to emotionally support his mother was denied by his unit commander.

	c.  His mental health took a dramatic downward spiral and he was placed in a psychiatric hospital in South Korea prior to being honorably discharged from the Army.

	d.  He subsequently served two additional tours in the Army from 1977 – 1980 and 1983 – 1987, at which time his girlfriend left him, his mother’s health began to fail, and he continued to struggle with the death of his sisters.

	e.  Because of his mental health, he was confused and truly did not know what he was doing when he went home to see his mother without permission. 
	f.  He begged his commander to allow him to stay in the military, but he was given a court-martial which resulted in his bad conduct discharge.

	g.  He disobeyed an order and had an obligation to serve his country which he acknowledges to this day; however his deteriorating mental health continues to plague him and he feels his UOTHC discharge should be upgraded for medical reasons.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter of Commendation
* two Department of Veterans Affairs (VA) Letters
* Social Security Administration Letter

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 initially enlisted and served in the Regular Army (RA) from
25 March 1974 to 5 May 1975.  The DD Form 214 issued him at that time shows he completed 1 year, 1 month, and 10 days of creditable active duty service and received a GD.

3.  On 8 July 1977, he reentered active duty.  He was trained in and awarded military occupational specialty 76Y (Unit Supply Specialist).

4.  A DA Form 20B (Insert to DA Form 20 – Record of Court-Martial Conviction) shows he was convicted by special court-martial on 18 October 1979 for being AWOL on three separate occasions.  The sentence imposed by the military judge was confinement at hard labor for 30 days, reduction to private/E-1, and a bad conduct discharge (BCD).

5.  On 4 December 1979, the convening authority approved the sentence.

6.  SPCM Order Number 51, dated 20 June 1980, issued by Headquarters, 7th Infantry Division, Fort Ord, California, affirmed the sentence and ordered the BCD sentence duly executed.  On 10 July 1980 the applicant was discharged accordingly.

7.  The separation document (DD Form 214 (Report of Separation from Active Duty)) issued to the applicant on the date of his discharge confirms he completed a total of 3 years, 11 months, and 8 days of creditable active military service of which 65 days was time lost.  It also shows that he was separated under the provisions of Chapter 11, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial.

8.  The applicant’s military record does not contain any evidence to show he served in the military beyond 20 June 1980.  It also does not contain any evidence to show he suffered from any physical or mental condition that warranted his processing through medical channels.

9.  On 23 July 1983, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

10.  The applicant provides a VA rating dated 10 November 2011.  It shows he was granted a 70 percent disability rating for a “non-service-connected” disability.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 11 provided that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or SPCM after completion of the appellate review and after such affirmed sentence has been ordered duly executed.

	b.  It provides 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

	
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 punitive discharge should be upgraded to a GD for medical reasons because he is continually plagued by his deteriorating mental state.  However, the available medical evidence gives no indication that he suffered from a physical or mental condition that impaired his ability to serve at any time during his active duty service.  He received a GD at the end of his initial period of active duty service. 

2.  The evidence of record confirms a SPCM convicted the applicant of being AWOL on multiple occasions which resulted in his BCD.  His trial by court-martial was warranted by the gravity of the offense for which he was charged.  His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.  Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency in the form of a general under honorable conditions discharge is not warranted in this case.

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)                                         AR20150001585





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ABCMR Record of Proceedings (cont)                                         AR20150001585



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