IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150010928 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: 26 April 2016 DOCKET NUMBER: AR20150010928 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: 26 April 2016 DOCKET NUMBER: AR20150010928 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 to a general discharge. He also requests a personal appearance before the Board. 2. The applicant states more than 20 years ago, a hearing was held to upgrade his discharge to general. He received a letter several years later giving him a full pardon and granting him a general discharge. Unfortunately, he has not received his general discharge yet. 3. The applicant provides copies of his birth certificate and social security number. 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 9 October 1985. He was trained in and held military occupational specialty 94B (Food Service Specialist). He served with the 2nd Battalion, 14th Field Artillery, 1st Armored Division, Germany, from on or about 18 February 1986 to 29 March 1988. 3. He was awarded or authorized the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Grenade Bar. 4. His records indicate he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 13 May 1986, for breach of the peace * 26 March 1987, for failure to report and being disrespectful toward a noncommissioned officer * 11 August 1987, for assault 5. On 18 November 1987, his commander initiated a Bar to Reenlistment Certificate against him citing his misconduct. He was furnished a copy of this bar and he submitted a statement on his own behalf. The bar was approved. 6. On 8 August 1988, he was arraigned and tried at a general court-martial at Headquarters, 1st Armored Division, for violating the UCMJ. He was convicted of: * Charge I, one specification of violating a general regulation; he pled guilty and was found guilty * Charge II, one specification of wrongfully possessing marijuana with an intent to distribute, one specification of wrongfully distributing marijuana, and one specification of wrongfully using marijuana; he pled guilty and was found guilty 7. The court sentenced a forfeiture of all pay and allowances, confinement for 9 months, reduction to pay grade E-1, and a bad conduct discharge. He was confined at Fort Riley, KS. 8. On 27 October 1988, the convening authority approved the sentence and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 9. On 10 March 1989, the unexecuted portion of the sentence to confinement adjudged on 8 August 1988 was ordered remitted. He was released from confinement and placed on excess leave pending the appellate review process. 10. On 15 June 1989, the U.S. Army Court of Military Review affirmed only so much of the finding of guilty of Charge II, wrongfully distributing various amounts of marijuana in the hashish form on several occasions. The court affirmed the remaining findings of guilty and the sentence was affirmed. 11. There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review with respect to any matters of law. 12. Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 703, dated 29 August 1989, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. 13. The applicant was discharged on 7 September 1989. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Enlisted Personnel Separations), chapter 3, with a bad conduct discharge. This form further shows he completed 3 years, 1 month, and 25 days of creditable active military service with lost time from 8 August to 8 October 1988 and 9 October 1988 to 9 March 1989. He also had excess leave from 10 March to 17 September 1989. REFERENCES: 1. 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. 2. Army Regulation 635-200, 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. 3. Army Regulation 635-200, 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. 4. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The applicant was convicted by a general court-martial and was sentenced to a bad conduct discharge. His trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 3. He was given a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this Board 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. 5. There is no evidence in his records that shows he was granted a general discharge by any authority. His service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Clemency in the form of an honorable or general discharge is not warranted in this case. His service did not rise to the level required for a general or an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010928 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010928 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2