BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150013603 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 BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150013603 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. BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20150013603 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 reconsideration of his previous request to have his bad conduct discharge (BCD) upgraded to general under honorable conditions. 2. The applicant states that in 1982 he worked as a disc jockey after hours at a club in Frankfurt, Germany. Routinely after work, he would go to a nearby restaurant to eat before going back to the barracks. One night after leaving the club around midnight, he and three other Soldiers walked toward the restaurant. At one point the other two Soldiers crossed the street at the light; however, he and another Soldier remained on the right side of the sidewalk. The next thing he heard was a window breaking. He was astonished when a German police officer ran toward them shooting. He reacted without thinking and just started running. He ran for about 15 minutes to the other side of the tracks trying to get back to the barracks, but the German police arrested him. 3. He spent two days waiting for the Military Police (MP) to pick him up. He never signed a statement at any time and no translated statement was made available to him. The MPs took him back to the barracks and he performed regular duties waiting for an Article 15 punishment. He was surprised to find out he was being court-martialed. He does not understand why two of them were completely cleared but he and another Soldier got "The Book." He had nothing to do with the rock or the broken window. During his period of service, he only received one Article 15 for not showing up to a class in boot camp because transportation never showed. He never had any other problems. 4. The applicant provides three character references and a Department of Veterans Affairs (VA) Form 21-0958 (Notice of Disagreement). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110012426 on 5 January 2012. In this case, the Board denied his request finding there was insufficient evidence to indicate probable material error or injustice. 2. The applicant provides a detailed statement of events. This new evidence warrants consideration by the Board. 3. He enlisted in the Regular Army on 20 May 1980 and he served as a 31M (Multichannel Communications Equipment Operator). 4. He accepted nonjudicial punishment on 10 March 1981 for failing to go at the time prescribed to his appointed place of duty. 5. On 13 January 1983, he was found guilty, contrary to his pleas, by a special court-martial of attempting to steal a ring and other jewelry of a value of over $100.00 by throwing bricks through a jewelry store window and for willfully destroying the windows of a jewelry store of a value of about $500.00. 6. He was sentenced to be reduced to the grade of private/E-1, forfeiture of $300.00 per month for 3 months, confinement at hard labor for 3 months, and to be discharged from the service with a BCD. The sentenced was approved on 28 March 1983. 7. On 22 January 1985, the U.S. Army Court of Military Review directed the action of the convening authority, dated 28 March 1983, be set aside. The record of trial was returned to The Judge Advocate General for a new review and action by a different convening authority. 8. On 13 August 1985, the action taken by the convening authority, dated 28 March 1983, having been set aside on 22 January 1985, another review pursuant to the Uniform Code of Military Justice was completed. The sentence was approved but the execution of confinement in excess of 61 days was suspended until 12 February 1986, at which time, unless the suspension was sooner vacated, the suspension would be remitted without further action. 9. On 7 May 1986, the sentence having been affirmed and the provisions of Article 71c having been complied with, the sentence was ordered executed. 10. Accordingly, he was discharged on 30 May 1986 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial with a bad conduct discharge. 11. He provides three character letters attesting to his devotion to his family, work, and determination to overcome life?s challenges and obstacles. The Post Commander for his local American Legion states he is always punctual and accomplishes all tasks despite a handicap. He served as the post vice commander. The VA denied him service-connection for a broken right thumb. He is appealing their decision. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable or bad conduct discharge. It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed. 2. 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. 3. 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. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant requests reconsideration of his previous request to upgrade his BCD to general under honorable conditions. 2. The applicant pled not guilty but was found guilty by a special court-martial of attempting to steal a ring and other jewelry and destroying a jewelry store window by throwing a brick. He provides no evidence, other than his own statement, to show an error or injustice occurred. 3. His sincerity is not in question. The Board is not an investigative body and without evidence to the contrary, there is a presumption of administrative regularity in this case. The trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013603 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013603 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2