IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150006094 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X__ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150006094 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. IN THE CASE OF: BOARD DATE: 21 April 2016 DOCKET NUMBER: AR20150006094 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 bad conduct discharge. 2. The applicant states he should not have been court-martialed or given a dishonorable characterization of service. He should have been medically discharged because he was diagnosed with a mental illness by Lieutenant Colonel (LTC) L. The military has records of his medical treatment. He wants medical compensation and any other benefits he is entitled to. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * letter from the National Personnel Records Center * letter from the Social Security Administration * VA Form 21-4138 (Statement in Support of Claim) * Photocopied picture * Certificate of Birth * letters from the Department of Veteran Affairs 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 12 June 1973. On 5 November 1976, he was honorably released from active duty and transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement). He completed 2 years, 11 months, and 28 days of net active service this period. 3. His medical records are not available for review and his available record does not provide evidence of the existence of any injury or illness that would have warranted his entry into the Physical Disability Evaluation System (PDES) during this period of service. 4. On 18 October 1979, he executed a new enlistment in the Regular Army. 5. Before a General Court-Martial at Fort Lewis Washington, WA he was convicted of: a. Specification 1 of Charge II for violating Article 111 of the Uniform Code of Military Justice (UCMJ) by operating a vehicle while drunk on or about 24 August 1980; b. Specification 2 of Charge II for violating Article 111 of the UCMJ by driving recklessly on or about 24 August 1980; c. Charge II for violating Article 112 of the UCMJ by being drunk on duty on or about 24 August 1980; d. Charge IV for violating Article 120 of the UCMJ by committing rape on or about 22 May 1980; e. Charge V for violating Article 128 of the UCMJ by committing assault on or about 24 August 1980. 6. On 6 December 1980, the court sentenced him to reduction to the rank/grade of private/E-1, forfeiture of all pay and allowances, confinement at hard labor for 6 years, and a bad conduct discharge. 7. On 26 February 1981, the convening authority approved his sentence. The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 8. Orders 42-600, issued by Headquarters, 9th Infantry Division, Fort Lewis, WA dated 3 March 1981, reassigned him to the U.S. Disciplinary Barracks, Fort Leavenworth, KS, effective 10 March 1981. 9. On 28 September 1981, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial. 10. On 26 January 1982, he was discharged accordingly. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of court-martial with a bad conduct discharge. He completed 10 months and 6 days of net active service during this period of enlistment, and he was credited with 2 years, months, and 28 days of prior active service. 11. His medical records are not available for review and his available record is void of documentation that shows he was diagnosed with any medical condition warranting his entry into the Physical Disability Evaluation during this period of service. 12. He provides a statement from LTC L, Chief, Psychiatry Division which stated, in part, that he had been previously diagnosed as having a schizophreniform disorder and was not competent to waive his discharge physical examination. However, the dates on this statement have been redacted and there is no way to determine when this statement was prepared. 13. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and sets forth the policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to perform the duties of his office, grade, rank, or rating. If a Soldier is found unfit because of physical disability, it provides for disposition of the member according to applicable laws and policies. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is a separation 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 has met 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. Paragraph 3-7b 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. c. Paragraph 3-10 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It provides that 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. 3. 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: 1. The applicant contends he was mentally incompetent during his court-martial proceedings. 2. The available evidence does not support his contention and does not indicate he suffered from mental incompetence. Notwithstanding the statement he provides from LTC L, his record is void of documentation that shows he was diagnosed with any medical condition warranting his entry into the PDES during his military service. 3. The applicant was given a bad conduct discharge pursuant to an approved sentence by a general court-martial, which was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. 4. 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 sentence imposed. The evidence does not appear to support clemency in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006094 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006094 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2