BOARD DATE: 15 August 2017 DOCKET NUMBER: AR20160001029 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: 15 August 2017 DOCKET NUMBER: AR20160001029 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: 15 August 2017 DOCKET NUMBER: AR20160001029 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) to an honorable discharge. 2. He states his special court-martial was not grounds for a BCD. 3. He provides: * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * DD Form 4 (Enlistment/Reenlistment Document), dated 14 February 1985 * DA Form 428 (Application for Identifications Card), dated 24 June 1985 * Standard Forms (SF) 88 (Report of Medical Examination), dated 13 February 1985 and undated * Orders 08-145, dated 27 August 1986 * SF Forms 93 (Report of Medical History), dated 13 February 1985 and 21 August 1987 Health Record Documents * Health Record Documents * DA Form 2-1 (Personnel Qualification Record – Part II) 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. With prior service in the U.S. Army Reserve, on 26 November 1986, the applicant enlisted in the Regular Army. 3. On 2 July 1987, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 16 June 1987 to on or about 17 June 1987. 4. The applicant departed in an AWOL status on or about 3 July 1987. His record is void of a Military Police Report identifying his return to military control or apprehension. 5. On 25 August 1987, a summary court-martial convicted him of being AWOL from on or about 3 July 1987 to on or about 15 August 1987. He was sentenced to a forfeiture of $150.00 pay per month for one month and confinement for 30 days. 6. On 7 April 1988, the applicant was convicted by a special court-martial of two specifications of violating Article 86 of the UCMJ for being AWOL from 18 December to 23 December 1987 and from 4 January to 3 March 1988 and one specification of violating Article 112a by wrongfully using cocaine between 24 October 1987 and 24 November 1987. The court sentenced him to a BCD, forfeiture of $400.00 pay per month for 5 months, and confinement for 5 months. Only so much of the sentence as provided for a BCD, forfeiture of $400.00 pay per month for 5 months, and confinement for 2 months was approved. 7. Headquarters, National Training Center and Fort Irwin, Fort Irwin, CA, Special Court-Martial Order Number 11, dated 3 October 1988, shows the applicant's sentence to a BCD, forfeiture of $400.00 pay per month for 5 months, and confinement for 2 months was affirmed. Having been complied with, the approval authority ordered the BCD executed. 8. His DD Form 214 shows he was issued a BCD on 5 May 1988. He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) "as a result of court-martial, other." He completed 1 year, 5 months, and 10 days of creditable active service this period. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or BCD. It provides that a Soldier will be given 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 must be ordered duly executed. b. 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. c. 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. 2. Court-martial convictions stand as adjudged or as 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 Manual for Courts-Martial (MCM) (1984 Edition) provides the maximum punishment for Articles 86 and 112a, AWOL and wrongful use, possession, etc., of controlled substances, respectively. The manual states the maximum punishment for the following: a. Article 86, AWOL for more than 3 days, but not more than 30 days (18 December 1987 to 23 December 1987): confinement for 6 months and forfeiture of two-thirds pay per month for 6 months. b. Article 86, AWOL for more than 30 days (4 January to 3 March 1988): dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. If AWOL is terminated by apprehension, the confinement period is an additional 6 months. c. Article 112a, wrongful use of cocaine: dishonorable discharge and confinement for 5 years. DISCUSSION: 1. The applicant argues his special court-martial was not grounds for a BCD. 2. In accordance with the MCM, the maximum punishment for his AWOL of more than 30 days is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year and 18 months, if apprehended. Additionally, his charge of wrongful use of cocaine has a maximum punishment of a dishonorable discharge and confinement for 5 years. The available evidence shows that his special court-martial was grounds for a BCD. 3. The evidence of record shows he was convicted by a special court-martial that was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. 4. He was sentenced to a BCD pursuant to an approved sentence of a special 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. 5. 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) AR20160001029 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001029 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2