IN THE CASE OF: BOARD DATE: 23 August 2016 DOCKET NUMBER: AR20150012626 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: 23 August 2016 DOCKET NUMBER: AR20150012626 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: 23 August 2016 DOCKET NUMBER: AR20150012626 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 has a psychiatric problem * his mental stability was in question at the time of his discharge * he never received a psychiatric evaluation 3. The applicant provides no additional evidence. 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 3 June 1976. 3. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) shows he received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on 10 December 1976 for failing to go at the prescribed time to his appointed place of duty on 30 November 1976. 4. A second DA Form 2627 shows he again received NJP under the provisions of Article 15 of the UCMJ on 18 July 1977 for failing to go at the prescribed time to his appointed place of duty on 12 July 1977. 5. On 21 April 1978, he appeared before a special court-martial assembled at Fort Hood, TX, pursuant to Headquarters, III Corps and Fort Hood, Court-Martial Convening Order Number 26, dated 6 April 1978. a. He was charged with absenting himself from his unit without authority on or about 17 December 1977 until 2 January 1978 and selling marijuana to another Soldier within the boundaries of Fort Hood, TX, on 19 January 1978. b. He was found guilty of both charges. c. He was sentenced to confinement at hard labor for 4 months, forfeiture of $150.00 per month for 6 months, reduction to the rank/grade of private/E-1, and separation from the service with a bad conduct discharge. 6. On 14 July 1978, the sentence as adjudged was approved. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 7. Headquarters, U.S. Army Training Center and Fort Dix, Special Court-Martial Order Number 8, dated 25 January 1979, shows the sentence promulgated in Headquarters, III Corps and Fort Hood, Special Court-Martial Order Number 11, dated 14 July 1978, was affirmed and the sentence would be duly executed. The portion of the sentence as pertained to confinement at hard labor had been served. 8. His DD Form 214 shows he was discharged effective 21 September 1979 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11. His service was characterized as under other than honorable conditions. He completed 2 years, 5 months, and 27 days of total active service with 334 days of lost time. He was issued a Bad Conduct Discharge Certificate. 9. His military records do not contain a copy of a Mental Status Evaluation nor do they contain any documentation corroborating he was ever diagnosed with or treated for a mental health condition. 10. The Army Review Boards Agency corresponded with the applicant on 12 April 2016, requesting copies of the medical documents that support his claims of mental health issues. He did not respond or provide any additional documentation. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11, in effect at the time, provided that a member would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review, and after such affirmed sentence has been ordererd duly executed. b. 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. c. 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. DISCUSSION: 1. The applicant was discharged under other than honorable conditions pursuant to an approved sentence by a general court-martial that was warranted by the gravity of the offenses with which he was charged. 2. His conviction and discharge proceedings were effected in accordance with applicable laws and regulations. His discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. 3. All requirements of law and regulation were met and his rights were fully protected. 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. 4. His military records do not contain a copy of a mental status evaluation conducted at any time during his military service. Although he claims to have a psychiatric problem that existed at the time of his discharge, there is no evidence in his military records and he has not provided any evidence to corroborate this claim. In the absence of evidence showing he was diagnosed with a mental health condition, which may have affected his discharge, regularity is presumed in that regard. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012626 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012626 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2