IN THE CASE OF: BOARD DATE: 1 March 2016 DOCKET NUMBER: AR20140016444 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 the same contentions that were addressed in his prior Army Board for Correction of Military Records (ABCMR) Army Docket Number AR20130013526 boarded on 20 May 2014 with the decision issued on 29 May 2014. The previous contentions included mental health conditions, a drug and alcohol substance abuse issue, his failure to understand the consequences of the actions taken against him, and violation of his rights. He adds a new statement describing conditions (lower back pain, right leg collapses, nightmares of tanks and cannons firing, and ringing in his ears) that he contends are the result of the injuries he received in military service. He states that he needs corrective surgery but cannot get it because he has no insurance and no income. 3. The applicant did not provide new evidence with his current application. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130013526 on 20 May 2014. 2. The applicant did not provide any new evidence to support his contentions to include no mental health evaluations that would show a mental health condition could have contributed to his misconduct. However, he provides a new argument, which was not previously considered by the ABCMR and, as such, warrants consideration by the Board 3. The applicant’s military service medical treatment records show that during his Regular Army service from 10 April 1979 to 18 March 1983, he incurred the following injuries: * twisted ankle from playing basketball * laceration of right foot big toe * 155mm towed howitzer trail element fell on his ankle * groin strain/hernia from lifting for which he was given a temporary profile * blisters from marching * sprain of right ankle from falling/jumping into a foxhole * contusion on right shoulder from truck accident * blood in eye and head pain from being kicked and hit by an assailant 4. In a physical examination administered on 10 October 1979 the applicant reported that he was in good health but had repair of a past hernia when he was an infant. The examining doctor noted that the applicant complained of pain in the hernia area. The doctor also noted complaints of leg cramps and nose bleeds in hot weather but otherwise found the applicant qualified with no profile restrictions. 5. In a physical examination administered on 3 April 1980 for the purpose of a pending chapter 13 separation for unsatisfactory performance, the applicant reported that he was in good health, that he had a hernia from birth that was repaired, and had recurrent back pain. The examining doctor noted that the applicant had problems due to lifting, the last episode one year earlier; and had recurrent back pain, the last episode in November 1979. On exam, the doctor found no hernia and found a well healed scar. The doctor found the applicant qualified for continued service with no profile restrictions. 6. In a physical examination administered on 18 November 1981 for the purpose of a chapter 14 separation for misconduct, the applicant reported that he was in good health and that he had a hernia from birth that was repaired. He did not report that he had recurrent back pain, had mental health issues or suffered from alcohol or substance abuse or had lingering ailments from his injuries. On exam, the examining physician’s assistant recorded no defects and otherwise found the applicant qualified for retention or separation with no profile restrictions. 7. A report of mental status evaluation, undated, indicates he had a mental status evaluation. His behavior was found to be normal, he was fully alert and oriented, his thinking process was clear, his thought content was normal, and his memory was good. He was also found to have no significant mental illness, he was mentally responsible, he was able to distinguish right from wrong and adhere to the right, and he had the mental capacity to understand and participate in board proceedings. 8. The applicant served as a cannon crewman at Army installations in the United States and in Germany between 29 November 1978 and 18 March 1983. He did not serve in combat or a combat theater of operations. 9. As outlined in ABCMR Docket Number AR20130013526, after a number of prior non-judicial punishments, the applicant was convicted by a special court-martial of larceny (stealing from another Soldier), housebreaking, and possession of marijuana. His sentence included confinement at hard labor for 5 months (2 months of which was suspended for 6 months) and a BCD. Accordingly, after subsequent judicial review he was discharged on 18 March 1983. 10. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the separation of enlisted personnel at the time of his separation. a. Chapter 3 provided that a Soldier would be given a punitive discharge (dishonorable discharge or BCD) 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. b. Paragraph 3-7a stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. c. Paragraph 3-7b stated 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. 11. 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 in a personally authored statement that he suffers back pain, leg pain, and emotional pain as a result of his military service. However, he provides no medical evidence to support these contentions. 2. The Board is prohibited by law from changing the finality of a court-martial conviction. It is only empowered to grant clemency if clemency is determined to be appropriate to moderate the severity of an imposed sentence. The evidence of record and the applicant’s new contentions are insufficient to justify clemency. 3. Given the seriousness of his criminal offenses and absent sufficient mitigating factors, the type of discharge directed and the reason therefore were appropriate. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130013526, dated 20 May 2014. _________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) AR20140016444 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140016444 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1