IN THE CASE OF: BOARD DATE: 7 March 2017 DOCKET NUMBER: AR20150015075 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 March 2017 DOCKET NUMBER: AR20150015075 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 March 2017 DOCKET NUMBER: AR20150015075 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. 2. The applicant states: a. It has been over 30 years since he served in the military after entering in February 1985. He was assigned to Tank Hill at Fort Jackson, SC, which was revered as one of the toughest basic training brigades in the country and it certainly was that. After completing basic training he was assigned to Fort Gordon in Augusta, GA, for advanced individual training as a 31C (Single Channel Radio Operator) for 14 weeks. Upon completion and at the age of 19 years, he was assigned to Headquarters and Headquarters Battalion, 3rd Armored Division Artillery, in Hanau, Germany. b. He was excited to be in Europe and was ready to do his level best as a Soldier. Unfortunately, since he did not know anyone and was only an E-1, he was easily manipulated as he sought acceptance from the other Soldiers in his quarters. He would say that roughly half of the enlisted personnel in the rank of E-5 or lower in his entire company were smoking hash on a regular basis. As a young innocent private, he fell into the wrong group/culture of Soldiers and it all went downhill from there. He was eventually set up and entrapped by a fellow Soldier who had already been busted by the Army's Criminal Investigation Division (CID) for smoking/buying hash. All of a sudden just for buying a tiny bit of hash (like 50 percent of the Soldiers in his quarters were doing on a regular basis before he arrived on the base) he found himself confined to the stockade. c. To add insult to injury, the CID investigators said that if he did not turn around and do the same by setting up his friends, they would keep him in confinement and court-martial him. He complied with their instructions out of sheer fear for his life and assisted them with bringing down a couple of Soldiers that were smoking hash. He was hoping the CID investigators would keep their word and let him continue his tour of duty. However, they did not keep their word and court-martialed everyone. It was a farce and nightmare rolled into one. He was the victim of the existing culture as an innocent 19 year old and an integrity-corrupted group of investigators that did not keep their word. d. He was alone and young in a foreign country and placed in jail and court-martialed and convicted. He was reassigned to Fort Riley, KS, for re-training. He finally persuaded the battalion commander at the time to release him on 31 December 1986 because he had been accepted at North Carolina State University for the 1987 Spring Semester. He went on to graduate with a Bachelor of Arts in History and a Master of Business Administration. He has been happily married for 20 years and has three children whom he adores. e. Unfortunately, he has a black cloud hanging over his head and he cannot tell his children about that part of his life. His father served in World War II. He cannot even mention his military service to his family. He admits smoking hash with the other Soldiers; however, everything went down after that. Being set up by another Soldier who had already been busted and having to do the same to some of his friends because he had no other option was an entrapment plot by CID that ended his career in the military with a court-martial and a bad conduct discharge. This discharge has been hanging over his head for too long and it is a grave injustice he cannot tolerate. He has no records or documentation regarding his service and he has exhausted all administrative remedies. He is appealing on the basis of logic and fairness for an upgrade of his discharge based on the aforementioned facts. 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 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 the cases 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. 2. The applicant enlisted in the Regular Army in pay grade E-1 on 2 February 1985 for 4 years. At the time of his enlistment, he was 18 years, 7 months, 27 days of age. He held military occupational specialty 31C. He served in Germany from 7 August 1985 to 5 August 1986. 3. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on/for: * 18 June 1985 – being absent without leave (AWOL) from 14 to 17 June 1985; his punishment consisted of a forfeiture of $144 pay for 1 month and 14 days of restriction and extra duty * 26 October 1985 –failing to go to his appointed place of duty on 15 September and 2 October 1985; his punishment consisted of a forfeiture of $144 pay for 1 month and 7 days in confinement 4. A DA Form 4126-R (Bar to Reenlistment Certificate), dated 27 January 1986, shows a bar to reenlistment was initiated against the applicant based on his record of NJPs, indebtedness, an administrative letter of reprimand, counseling, and suspension of driving privileges. The bar was approved on the same date. 5. On 4 August 1986, he was convicted by a general court-martial of four specifications each of wrongfully possessing, wrongfully distributing, and wrongfully using some amount of marijuana from 15 August to 10 October 1985 and wrongfully and unlawfully, with intent to defraud, uttering checks in the amount of $3,499.29 from 3 October to 4 December 1985. He was sentenced to a forfeiture of pay for 1 year, 1 year in confinement, and a bad conduct discharge. 6. On 7 October 1986, the convening authority approved the sentence except for the bad conduct discharge and the sentence was ordered executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 7. On 8 December 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 8. There is no evidence he applied to the U.S. Court of Military Appeals for a review of his case. 9. Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 949, dated 31 December 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 10. Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 223, dated 14 April 1987, remitted the unexecuted portion of the sentence to confinement for 9 months. 11. He was discharged in pay grade E-1 on 27 April 1987, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel Separations), chapter 3, as a result of court-martial. His DD Form 214 shows he completed 1 year, 9 months, and 23 days of active service and had 151 days of time lost. His service was characterized as bad conduct. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-11 – A Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed. b. Paragraph 3-7a – An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. 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 change a court-martial 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. DISCUSSION: 1. The evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 2. He was age 18 at the time of enlistment and over 20 years of age at the time of his court-martial conviction in 1986. There is no evidence he was any less mature than other Soldiers of the same age who honorably completed their service obligations or that his actions were a result of his age. 3. 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) AR20150015075 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015075 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2