IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20150011822 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: 7 July 2016 DOCKET NUMBER: AR20150011822 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: 7 July 2016 DOCKET NUMBER: AR20150011822 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 honorable. 2. The applicant states: * he was charged with stolen equipment out of his locker and he had no control over the equipment being stolen * he was forced to sign paperwork or else he would not be released from Korea 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 13 June 1966. 3. Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was assigned in Korea during the period 1 November 1966 to 30 November 1967. 4. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on multiple occasions. He did not submit an appeal to any of his punishments. His record of nonjudicial punishment is as follows: * on 13 May 1967 – for failing to observe the posted speed limit on or about 6 May 1967 * on 18 May 1967 – for being absent from his unit on or about 13 May 1967 until on or about 14 May 1967 * on 21 June 1967 – for being insubordinate toward a noncommissioned officer * on 9 August 1967 – for being absent from his unit on or about 5 August 1967 and for failing to observe curfew hours * on 5 January 1968 – for failing to report to his assigned unit on or about 26 December 1967 and remaining absent until on or about 4 January 1968 * on 1 April 1968 – for failing to obey an order on or about 23 March 1968 5. On 26 April 1968, he was honorably discharged for immediate reenlistment. On 27 April 1968, he reenlisted for a period of 4 years. 6. Headquarters, Fort Riley, Fort Riley, KS, General Court-Martial Order Number 50, dated 19 April 1969, shows he was tried and found guilty of: * being absent from his unit, 7th Engineer Battalion, Fort Carson, CO, on or about 16 May 1968 until on or about 30 October 1968 * escaping from lawful confinement at Fort Riley, KS, on or about 13 November 1968 7. His sentence was adjudged on 13 March 1969. He was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 1 year, and a bad conduct discharge. Only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 1 year, forfeiture of $50.00 for 12 months, and reduction to the rank/grade of private/E-1 was approved by the convening authority. 8. On 12 May 1969, the U.S. Army Board of Review (now known as the U.S. Army Court of Military Review) noted the sentence imposed by the court-martial did not expressly include a reduction in grade and the action of the convening authority providing for the applicant's reduction was not authorized. The findings of guilty and only so much of the sentence as provided for a bad conduct discharge, forefeiture of $50.00 per month for 12 months, and confinement at hard labor for 12 months was affirmed. 9. On 18 August 1969, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-1b. He was issued a DD Form 259A (Bad Conduct Discharge Certificate). 10. His records are void of and he failed to provide any evidence of an incident involving stolen equipment. 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.  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.  Paragraph 11-1b, in effect at the time, provided that an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 3. Army Regulation 600-200 (Enlisted Personnel Management System), chapter 7 in effect at the time, provided that upon determination by the general court-martial authority that an individual would be discharged from the service under other than honorable conditions, the individual would be reduced to the lowest enlisted grade. DISCUSSION: 1. Although he contends he was charged with stolen equipment out of his locker and he was forced to sign paperwork in order to leave Korea, his records are void of and he failed to provide any evidence of an incident involving stolen equipment. Further, he did not appeal any of his nonjudicial punishment. 2. The evidence of record shows he was tried and found guilty of being absent from his unit at Fort Carson, CO, and escaping confinement at Fort Riley, KS. 3. The general court-martial proceedings against him were conducted in accordance with law and regulations. His conviction and sentence were properly reviewed and affirmed, and the sentence was ordered to be duly executed. 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. Given the applicant's record of indiscipline and absent any mitigating factors, the type of discharge directed and the reasons therefor were appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011822 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011822 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2