IN THE CASE OF:  

		BOARD DATE:  16 July 2015

		DOCKET NUMBER:  AR20150005353 


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, in effect, an upgrade of his bad conduct discharge (BCD) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, he was not responsible for his behavior.  Two months after he was discharged he was diagnosed as schizophrenic.  He also states he has been diagnosed with post traumatic stress disorder (PTSD).

3.  The applicant provides –

* a DD Form 214 with several items checked that he believes are wrong and numerous notes
* a copy of a photograph
* copies of his MEDICARE Health Insurance card and Social Security card
* medical documents from the Pocatello Assisted Living Center
* medical documents from the New Horizons Mental Wellness Clinics
* medical documents from the Idaho Department of Health and Welfare

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 in the Regular Army on 23 October 1979.  He held military occupational specialty 31M (Multichannel Communications System Operator).

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in Germany from 19 March 1980 through 20 October 1983.  He was awarded the Army Good Conduct Medal, Army Service Ribbon, and the Overseas Service Ribbon.  The highest rank he attained was private first class/E-3.  Item 17 (Civilian Education and Military Schools) shows he did not complete high school. 

4.  He received nonjudicial punishment (NJP) under the provisions of Article
15, Uniform Code of Military Justice (UCMJ) on 20 April 1983 for being absent without leave (AWOL) from 3 March to 15 March 1983, and from 17 March to 
18 March 1983.

5.  A special court-martial convicted him on 13 September 1983, in accordance with his pleas, of being AWOL from 2 May to 1 June 1983 and for willfully disobeying a lawful order from his superior commissioned officer.  The court sentenced him to reduction to private/E-1, forfeiture of pay for one month, confinement for 31 days, and a BCD.

6.  The convening authority approved the sentence and, except for the BCD, ordered it executed.

7.  Special Court-Martial Order Number 77, Headquarters, U. S. Army Training Center and Fort Dix, dated 24 July 1984 announced his sentence had been affirmed.

8.  A Statement of Option, dated 18 July 1983, shows the applicant indicated he did not desire a separation medical examination.

9.  The applicant was discharged on 11 September 1984 with a BCD after completing 4 years, 8 months, and 23 days of net active service with time lost from 3 March to 14 March 1983, from 3 June to 21 June 1983, and from 
22 June to 16 July 1983. 

10.  The applicant's service medical records are not available for review. 

11.  He provides medical documents showing he has been under medical treatment since January 2014 for schizoaffective disorder, chronic obstructive pulmonary disease, Achilles bursitis or tendonitis, diabetic neuropathies, and hypothyroidism.

12.  There is no record of any medical diagnosis prior to January 2014.

13.  A review of his records did not reveal any evidence showing he completed high school or an equivalency test while on active duty or that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar. 

14.   He did not provide any evidence to support his annotations on his DD Form 214.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The version in effect at the time stipulated the following:

   a. An honorable discharge is a separation from the Army 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 meets 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. 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.

   c. An enlisted person will receive a BCD pursuant only to an approved sentence of a court-martial imposing a BCD.  The appellate review must be completed and the affirmed sentence ordered duly executed.

16.  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.

17.  Army Regulation (AR) 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is prepared for all personnel at the time of their retirement, discharge, or release from active duty.

DISCUSSION AND CONCLUSIONS:

1.  His trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

2.  There is no evidence he was diagnosed with schizoaffective disorder prior to January 2014 or that the disorder contributed to the misconduct that led to his court-martial and BCD.

4.  There is no evidence of record showing he has been diagnosed with PTSD.

5.  He did not provide any evidence to substantiate any of his requested corrections to his DD Form 214.

6.  In view of the foregoing, his request should be denied.

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 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)                                         AR20100010650



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150005353



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1