IN THE CASE OF: BOARD DATE: 9 February 2017 DOCKET NUMBER: AR20150016465 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: 9 February 2017 DOCKET NUMBER: AR20150016465 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: 9 February 2017 DOCKET NUMBER: AR20150016465 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 (BCD). 2. The applicant states that he was targeted by a noncommissioned officer (NCO) and went to Captain L___ about the targeting problems. The next thing he knew, he was being arrested for possession of 1/8 of an ounce of marijuana. He also states that there were extenuating circumstances (NCO problems) and the amount of marijuana was insignificant. 3. The applicant provides no documentation to support his request. 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 (RA) on 12 February 1993 for 6 years. He was a private stationed at Lowry Air Force Base, Aurora, CO, when a general court-martial convicted him on 10 September 1993 of: a. violating the Uniform Code of Military Justice (UCMJ), Article 86 – two specifications of failing to repair [report for duty] b. violating the UCMJ, Article 92 – failure to obey a lawful order c. violating the UCMJ, Article 112a – wrongful use of marijuana d. violating the UCMJ, Article 134 – incapacitated for duty by alcohol, disorderly conduct, breaking restriction, drunk and disorderly conduct 3. The court sentenced him to reduction to the grade of private E1, a forfeiture of all pay and allowances, confinement for 1 year, and a bad conduct discharge. 4. The convening authority approved the sentence and except for the bad conduct discharge, the sentence was ordered executed. The record of trial was forwarded for appellate review. 5. On 22 July 1994 the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 6. U.S. Army Garrison, Fort Dix, NJ, General Court-Martial Order Number 18, dated 13 February 1995, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge was ordered to be executed. 7. On 12 December 1995 the applicant was discharged. He completed 2 years, 1 month, and 22 days of creditable active military service this period. He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3. His narrative reason for separation was court-martial and his character of service shows bad conduct. He had time lost from 25 May 1993 to 3 February 1994. REFERENCES: 1. Army Regulation 635-200 provides for the following characters of service: 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. c. Chapter 3 of the version in effect at the time stated an enlisted person will receive a BCD 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. 3. The Table of Maximum Punishments of the Manual for Courts-Martial, as then in effect and per the edition currently effective, shows the authorized punishment for Article 92 (failure to obey a lawful order) and Article 112a (illegal drug offense) includes a punitive discharge. DISCUSSION: 1. The applicant provided no evidence to support his claims of being targeted by an NCO or any other extenuating circumstances that could be attributed to his conduct that led to his trial by court-martial. 2. The applicant's trial by general court-martial was warranted by the gravity of his offenses. His conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were fully protected throughout the court-martial process, including the appellate review. In view of his conviction by general court-martial, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016465 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016465 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2