BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015478 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: 21 February 2017 DOCKET NUMBER: AR20150015478 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: 21 February 2017 DOCKET NUMBER: AR20150015478 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 enlisted in the Army at 17 years of age; he was a high school dropout and had no choice – he was ordered by a court to enter the Army * by today's standards he should never have been allowed to enter the Army, thus making this an equity issue * he served in Korea, Germany, Hawaii, and Vietnam; in the late 1960s and early 1970s, drug and alcohol prevention programs did not exist * it is true that he possessed and transferred marijuana and cocaine at the time, but he had no intention to sell it * it was not for sale – people in the unit pooled their money and bought the drugs and he was the courier * he spent some time in the U.S. Disciplinary Barracks but no punishment is equal to that he has had to live with for the past 43 years * he is not saying he suffers from post-traumatic stress disorder but he believes his way of thinking was not rational or normal * he is a an American who loves his country; he served his country overseas and he now wants an upgrade of his bad conduct discharge 3. The applicant provides Review of the Staff Judge Advocate of his General Court-Martial Record of Trial. 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 was born in July 1951 and enlisted in the Regular Army at 17 years of age on 29 August 1968. He held military occupational specialty 11D (Armor Reconnaissance Specialist). 3. He was honorably discharged on 29 April 1969 for immediate reenlistment and on 30 April 1969, he executed a 4-year reenlistment. He was 18 years and 9 months of age on the date of reenlistment. 4. On 27 June 1969, he departed his unit in an absent without leave (AWOL) status and on 27 July 1969, he was dropped from the rolls as a deserter. He ultimately returned to military control on 11 September 1969. 5. On 13 October 1969, he was convicted by a special court-martial of one specification of being AWOL from 27 June 1969 to 12 September 1969. The court sentenced him to reduction to E-1, forfeiture of $82 pay per month for 4 months, and confinement at hard labor for 4 months (suspended). The convening authority approved his sentence on 3 November 1969. 6. He served in a variety of overseas assignments, including: * Korea, from 13 December 1969 to 18 January 1971 * Germany, from 25 February 1971 to 7 July 1971 * Vietnam, from 26 August 1971 to 12 February 1972 * Hawaii, from 12 February 1972 to 19 July 1973 7. On 14 December 1972, he was arraigned and tried by a general court-martial convened at Headquarters, 25th Infantry Division, Hawaii. He was charged with the following three specifications, all of which occurred in October 1972: * wrongfully possessing marijuana * wrongfully possessing cocaine * wrongfully transferring cocaine 8. Consistent with his pleas, the court found him guilty of the charge and its three specifications and sentenced him to reduction to the lowest enlisted grade of E-1, confinement at hard labor for 2 years, forfeiture of all pay and allowances, and a bad conduct discharge. 9. On 28 February 1973, the convening authority approved only so much of the sentence as provided for reduction to E-1, confinement at hard labor for 9 months, forfeiture of all pay and allowances, and a bad conduct discharge, 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. 10. The applicant was confined from 19 October 1972 until 25 July 1973. 11. On 4 April 1973, the United States Army Court of Military Review affirmed the findings of guilty and approved sentence. 12. General Court-Martial Orders Number 567, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 28 June 1973, show that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge executed. 13. The applicant was discharged on 25 July 1973. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged in accordance with chapter 11 of Army Regulation 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, 2 months, and 28 days of total active service during the period covered by this DD Form 214, of which 276 days was lost time, under Title 10, U.S. Code, section 972 * he was awarded or authorized the National Defense Service Medal, Armed Forces Expeditionary Medal (Korea), Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), and Vietnam Service Medal 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 was tried and convicted by a general court-martial of possessing and transferring illegal drugs (marijuana and/or cocaine). The court sentenced him to confinement, reduction in grade, forfeiture of pay, and a bad conduct discharge. His trial by 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. 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. 2. 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 ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 3. The applicant was 17 years of age at the time of his enlistment. However, he was 18 years and 9 months of age when he reenlisted and he was 21 years and 6 months of age when he committed the offenses that resulted in his court-martial conviction. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015478 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015478 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2