BOARD DATE: 12 November 2015 DOCKET NUMBER: AR20150004448 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 upgrade of his bad conduct discharge (BCD). 2. He states the lost time on his DD Form 214 (Report of Separation from Active Duty) 8 to 11 March 1974 and 2 December to 18 January 1978 was incorrect and he spent this time in pre-trial confinement and/or Leavenworth. He explains that his company commander and the Criminal Investigation Division officer arrested him when he was in another Soldier's room. They allegedly found drugs and marked money in a paper bag inside a hallway garbage can close to the room. He was accused of having these items and sent to prison to wait for trial. He did not have any money for a civilian lawyer and therefore, he had to accept a military lawyer who advised him to plead guilty. He was sent to Leavenworth where he served a year prior to being sent home. He adds a few months later he underwent a separation physical where a dark mass was detected on his lungs and he was later diagnosed with sarcoidosis. 3. He provides: * Self-authored statement * DD Form 214 * BCD Certificate * Medical diagnosis sheet 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 2 October 1972. 3. His disciplinary history includes acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on: * 5 June 1973 for failing to go to his appointed place of duty at the time prescribed on 4 June 1973 * 29 March 1974 for being absent without leave from 8 to 12 March 1974 * 29 October 1975 for wrongfully communicating a threat to injure another Soldier 4. On 27 February 1976, he was convicted by a general court-martial of: * Specification 1: Wrongfully having in his possession .3 grams, more or less, of heroin on 1 February 1976 * Specification 2: Wrongfully selling heroin on 1 February 1976 * Specification 3: Wrongfully communicating a threat to a private by saying to him "Have my money by this weekend or I'll kill you" on 7 January 1976 5. The court sentenced him to reduction to the grade of E-1, a forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a BCD. The convening authority approved only so much of the sentence as provided for reduction to the pay grade of E-1, confinement for 3 months, and a BCD. On 30 September 1977, the unexecuted portion of the sentence to a forfeiture of all pay and allowances was remitted effective 2 December 1976, and the accused having served the period of confinement adjudged was restored to duty pending appellate review. The U.S. Army Court of Military Review affirmed the findings and sentence in December 1977. 6. His DD Form 214 shows he was discharged under other than honorable conditions on 19 January 1978 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2. He was issued a BCD certificate and assigned a separation code of JJD. He completed 4 years, 5 months, and 10 days of active duty (AD) service with 247 days listed as lost time: 8 through 11 March 1974 and 2 February through 1 October 1976. Additionally, he had 61 days of lost time subsequent to normal expiration term of service and 414 days of excess leave from 2 December 1976 through 18 January 1978. 7. The applicant provides a medical diagnosis sheet that shows he underwent an upper gastrointestinal with air contrast on 8 February 2013. There were no significant findings noted. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 2-4, in effect at the time, states that lost time refers to periods of more than 1 day when a Soldier on AD cannot perform duty because of: * desertion * absence without proper authority * confinement under sentence * confinement while awaiting trial or disposition of Soldier's case, if trial results in conviction * intemperate use of drugs or alcohol * disease or injury, the result of Soldier's misconduct b. Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or BCD. Paragraph 11-2 provided that a BCD would be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed. c. 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. d. 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. 9. Court-martial convictions stand as adjudged or as 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 argues the lost time on his DD Form 214 from 8 to 11 March 1974 and 2 December to 18 January 1978 was incorrect since he spent this time in pre-trial confinement and confinement. The regulation, as cited in paragraph 7a of this document, states that lost time refers to periods of more than 1 day when an a Soldier cannot perform duty because of, in pertinent part, confinement under sentence or awaiting trial. Therefore, his pre-trial confinement and subsequent confinement is considered lost time and is properly recorded on his DD Form 214. 2. The evidence shows he was convicted by a general court-martial which was warranted by the gravity of the offense 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. 3. He was given a BCD pursuant to an approved sentence of a general court-martial. The appellate review was completed and sentence affirmed. All requirements of law and regulation were met and his rights were fully protected. 4. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. Therefore, given his offense and absent any mitigating factors, the type of discharge directed and the reasons were appropriate. As a result, clemency does not appear to be 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) AR20150004448 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004448 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1