BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150015731 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: 14 February 2017 DOCKET NUMBER: AR20150015731 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: 14 February 2017 DOCKET NUMBER: AR20150015731 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, in effect, an upgrade of his bad conduct discharge. 2. The applicant states the punishment he received for the offense was unjustly severe. Other members of the unit who committed the same offense received lesser punishments. 3. The applicant provides two court-martial orders and court appeal proceedings. 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. Having had prior active service, the applicant enlisted in the Regular Army on 29 March 1977 in the rank of specialist four (SP4)/E-4. On 9 August 1977, he was assigned to the First School Battalion (BN), U.S. Army Intelligence Center and School (USAICS), Fort Huachuca, AZ. On 13 March 1978, he was promoted to specialist five (SP5)/E-5. 3. On 16 November 1978, he was convicted by a summary court-martial of one specification each of: * wrongfully possessing marijuana * wrongfully aiding and abetting in the attempted sale of marijuana * wrongfully introducing marijuana into Fort Huachuca to sell 4. He was sentenced to forfeiture of $250 and reduction to SP4. 5. On 12 August 1979, he was promoted to SP5. On 24 May 1980, he was assigned to the 2nd BN, 92nd Field Artillery, Germany. 6. On 26 January 1982, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for driving while drunk. The punishment imposed was forfeiture of $200 per month for 1 month and reduction to SP4 (suspended until 26 April 1982). 7. On 5 April 1982, he was promoted to staff sergeant (SSG)/E-6. 8. On 12 November 1982, he was convicted by a general court-martial of one specification each of wrongfully selling marijuana in the hashish form. 9. He was sentenced to reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 9 months, and a bad conduct discharge. He was subsequently incarcerated at the U.S. Army Correctional Activity, Fort Riley, KS. 10. The applicant provides a summary of proceedings that shows in April 1983 his counsel filed an appeal to the U.S. Army Court of Military Review alleging several procedural errors occurred during his court-martial. 11. On 11 May 1983, the applicant was placed on excess leave pending the appellate review. 12. General Court-Martial Order 155, dated 11 May 1983, issued by the U.S. Army Correctional Activity, Fort Riley, shows the approving authority ordered the unexecuted portion of the approved sentence of confinement for 9 months suspended until 10 November 1983, at which time it would be remitted without further action, unless sooner vacated. 13. The U.S. Army Court of Military Review subsequently affirmed the applicant's approved findings of guilty and the sentence imposed. 14. His DA Form 2-2 (Record of Court-Martial Conviction) shows on 16 September 1983, his sentence having been affirmed and complied with, the approving authority ordered the bad conduct discharge executed. On 6 October 1983, he was discharged accordingly. 15. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged as a result of court-martial under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, with a bad conduct characterization of service. He completed 6 years and 8 days of net active service of which 149 days (4 months and 29 days) was excess leave and he had 180 days (6 months) of lost time due to being in confinement. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial in certain circumstances. d. Paragraph 3–11 states that a Soldier will be given a punitive discharge (i.e. bad conduct discharge or dishonorable 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. 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 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. DISCUSSION: 1. The evidence of record confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. He was an SSG at the time and was found guilty of using and possessing illegal drugs while stationed in a foreign country. His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted. 2. By law, any redress by the ABCMR 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015731 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015731 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2