IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150004655 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. 2. The applicant states, in effect: * he was court-martialed in September 1982 for disobeying a direct order not to be on Howard Air Force Base (HAFB) unless required by military duties * he was trying to get back to his unit located at Fort Kobbe, Panama * going to HAFB was the only way back and he was trying to avoid being absent without leave (AWOL) * he was not in Panama or assigned to a military unit on 14 March 1983, so he questions how could he have been court-martialed * he requests help in finding out what happened * he provides his permissions to access all of his military and medical records 3. The applicant provides no additional documentary 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. After having prior enlisted service in the Regular Army and the U.S. Army Reserve, he reenlisted in the Regular Army on 27 March 1981 for a term of 4 years. 3. His service records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on/for: * on 1 December 1981, unlawfully striking another person on the face with his hand; he was punished with a forfeiture of pay and 14 days of extra duty (both suspended until 29 January 1982) * on 28 July 1982, failing to obey an order from his first sergeant (1SG) not to go to the HAFB Noncommissioned Officer's Club (emphasis added); his punishment consisted of reduction from specialist four (SP4) to private first class (PFC) (suspended for 180 days, but later vacated in or around September 1982), forfeiture of pay, and 14 days extra duty and restriction 4. On 10 December 1982, he was convicted by a special court-martial of: * one specification of willfully disobeying a lawful order from a superior commissioned officer not to go to HAFB * one specification of wrongfully communicating a threat to kill a female * one specification of attempting to alter the testimony of a witness before an investigation * one specification of wrongfully kicking a female in the face * one specification of attempting to bribe the prosecutor followed by the communication of a threat * one specification of impeding an investigation by preparing a false statement for the prosecutor's signature * one specification of failing to go at the time prescribed to his appointed place of duty * one specification of unlawfully choking another Soldier 5. The court sentenced him to confinement at hard labor for 5 months, a forfeiture of $350 per month for 5 months, reduction to the lowest enlisted grade, and a bad conduct discharge. On 18 March 1983, the convening authority approved all findings except that for charge/specification of failing to go at the time prescribed to his appointed place of duty, and approved the sentence. 6. Records show he was reassigned from Battery B, 22nd Field Artillery, Fort Kobbe, Panama to the U.S. Army Confinement [sic, Correctional] Activity, Fort Riley, KS on 16 December 1982. 7. His records also show, between on or about 9 March 1983 through 31 March 1983, he was assigned to the 6th Unit, 3rd Battalion, U.S. Army Correctional Activity, Fort Riley. As of 31 March 1983, he was placed on excess leave and remained in that status until his discharge. His records also contain a document, with the applicant's signature and dated 25 March 1983, showing he acknowledged being placed on excess leave. 8. Special Court-Martial Order Number 165, dated 31 March 1983, issued by U.S. Army Correctional Activity, stated the unexecuted portion of his confinement at hard labor was remitted. 9. On 8 December 1983, the U.S. Army Court of Military Review affirmed the findings and sentence. 10. Special Court-Martial Order Number 164, dated 3 May 1984, issued by U.S. Army Correctional Activity, directed his bad conduct discharge be duly executed. On 17 May 1984, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 9 months, and 20 days of net active creditable service this period and he had 121 days of lost time and 414 days of excess leave. a. He was awarded or authorized National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16). b. The separation authority was Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, Section IV (Character of Service/Description of Separation - Dishonorable and Bad Conduct Discharge). The narrative reason for separation was shown as being the result of court-martial. 11. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. He did, however, submit an application to this Board on 29 November 1986. a. His application was not acted upon because he had not yet requested relief from the ADRB. After unsuccessful attempts to contact the applicant and recommend he resubmit his application to the ADRB, his case was closed. b. No documentary evidence accompanied his application, but he provided a self-authored statement in which he essentially stated: * he was given NJP by his commander for disobeying a direct order (apparently referring to the NJP dated 28 July 1982 wherein he was charged with disobeying the order of his 1SG); this same charge reappeared when he was court-martialed (implying he was charged twice for the same crime) * he was confined to his barracks and his duty area for 14 days; he was then indefinitely confined to his barracks and duty area * before his commander advised him he would face a court-martial, his 1SG perjured himself on the witness stand; PV1 JBW also perjured himself * fellow Soldiers G and SP4 RW were threatened into testifying against him * the military lawyer, his commander's wife, and his commander all knew he had been tried in a Panamanian court and found innocent of charges concerning Ms. MCP-SM * a bond was placed on Ms. MCP-SM, Ms. TW, and Ms. EA; each were fined $500.00 for harassment * Ms. TW, and Ms. EA did not come to testify at the court-martial because this would have violated the judgment of the Panamanian court * Ms. MCP-SM lied about him when she testified before the court-martial * he confirmed he did strike PFC EM but only after PFC EM hit him in his right ear; because of the injury which resulted, he had to have part of his ear removed and later required follow-up surgery 12. 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. 13. Army Regulation 635-200, in effect at the time, prescribed policy and procedures for enlisted separations. a. 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. 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. A bad conduct discharge is issued 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. DISCUSSION AND CONCLUSIONS: 1. The applicant requests upgrade of his bad conduct discharge and an explanation as to how he was court-martialed on 14 March 1983 when, he contends, he was not in Panama or assigned to a military unit. 2. With regard to when he was court-martialed and his status on 14 March 1983, the evidence of record confirms he was court-martialed on 10 December 1982. As of 16 December 1982 he was assigned to the U.S. Army Correctional Activity at Fort Riley and remained assigned to this organization until, on 31 March 1983, he was placed on excess leave. He was on excess leave until his discharge on 17 May 1984. 3. As to the upgrade of his bad conduct discharge, his records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. As a result of findings of guilt, he was given a bad conduct discharge pursuant to a special court-martial empowered to adjudge such a discharge. This type of court-martial was warranted given the gravity of the offenses charged. 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. 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. The applicant provided no evidence in support of his request, and thus there is insufficient basis for the Board to grant clemency. Given the charges for which the applicant was convicted, the punishment seems 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 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) AR20150004655 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004655 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1