IN THE CASE OF: BOARD DATE: 14 June 2016 DOCKET NUMBER: AR20150011976 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: 14 June 2016 DOCKET NUMBER: AR20150011976 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: 14 June 2016 DOCKET NUMBER: AR20150011976 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 is very sick and in need of medical and financial help. 3. The applicant does not provide any 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 28 May 1968 for a 3-year term. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. He served in Germany from 26 October 1968 to around May 1971. He was assigned to the 2nd Battalion, 36th Infantry Regiment, 3rd Armored Division. 4. On 13 April 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty. 5. On 11 December 1970, he was convicted by a general court-martial of: * Charge I, one specification of behaving with disrespect toward a superior commissioned officer * Charge II, one specification of failing to obey an order * Additional Charge I, one specification of assaulting another Soldier on the chest * Additional Charge II, one specification of behaving himself with disrespect toward a superior commissioned officer 6. The court sentenced him to confinement at hard labor for 6 months, a forfeiture of $100 pay per month for 6 months, a reduction to the lowest enlisted grade, and a bad conduct discharge. 7. On 9 February 1971, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. 8. General Court-Martial Orders Number 147, issued by Headquarters, U.S. Army Training Center, Fort Benning, GA, shows the U.S. Army Court of Military Review had affirmed the finding of guilty and the sentence. 9. The applicant was discharged on 27 June 1972. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in accordance with chapter II of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel) with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate. It also shows: * he completed 3 years, 5 months, and 1 day of total active service, of which 241 days was lost time (12 September 1970 to 10 May 1971) * he was awarded or authorized the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar 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, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers. Chapter 3, section IV, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the sentence affirmed before it can be duly executed. a. Paragraph 3-7a, states 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. b. Paragraph 3-7b, states 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. c. Paragraph 3-11 states a member will be given a bad conduct discharge 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: 1. The applicant contends that his bad conduct discharge should be upgraded because he needs medical/financial help. 2. The applicant was convicted by a general court-martial of assault, failing to obey orders, and behaving with disrespect. His trial by court-martial was warranted by the gravity of the offenses for which he was charged. In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process. 3. 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. The applicant has not provided any documentary evidence to show his conviction and sentence were in error or unjust. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011976 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011976 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2