BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160001190 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: 12 September 2017 DOCKET NUMBER: AR20160001190 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: 12 September 2017 DOCKET NUMBER: AR20160001190 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 his arrest was a classic example of entrapment. Private First Class (PFC) Rxxx was an informant who stabbed a fellow Soldier and cut a deal. PFC Rxxx asked him to get the drugs. He was not selling any drugs. When he returned, PFC Rxxx walked out and pulled on the bill of his cap to signal military police who were waiting. This was entrapment. He wants an honorable discharge and the charges dropped. He did not have family support or money for a lawyer. The Army prosecutor threatened a 30-year sentence, scaring him into pleading guilty. 3. The applicant does not provide any 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 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 for a 4-year term on 2 November 1973. He competed training and held military occupational specialty 13B (Field Artillery Crewman). 3. On 11 December 1974, the applicant's immediate commander initiated a Bar to Reenlistment against the applicant for failing to meet the high standards of the Army in personal conduct and job performance (abuse of drugs and drug rehabilitation program). The applicant's senior commander approved the bar on 31 December 1974. 4. On 10 April 1975, consistent with his pleas, the applicant was convicted by a general court-martial of one specification of wrongfully possessing heroin and two specifications of wrongfully selling heroin. He was sentenced to a reduction to the lowest enlisted grade of E-1, forfeiture of all pay and allowances, confinement at hard labor for 18 months, and a bad conduct discharge. 5. On 1 May 1975, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, reduction to the grade of E-1, forfeiture of all pay and allowances, and confinement at hard labor for 1 year. The convening authority directed the record of trial be forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. Pending review, the applicant was confined at Fort Leavenworth, KS. 6. On 3 September 1975, the Army Clemency and Parole Board ordered remission of the portion of the sentence in excess of 10 months of confinement. 7. On 5 December 1975, the applicant was restored to duty pending completion of the appellate review and was placed on excess leave. 8. On 24 May 1977, the U.S. Army Court of Military Review affirmed the GCM findings of guilty and determined the sentence was correct in law and fact. 9. General Court-Martial Number 555, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, KS, dated 2 June 1977, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed. 10. On 11 July 1977, the applicant was discharged from the Army. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged as a result of court-martial with a bad conduct discharge under the provisions of chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). His DD Form 214 also show that: * his service was characterized as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate * he completed 2 years, 11 months, and 18 days of net active duty service * he had 262 days of lost time and 585 days of excess leave REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel. a. 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. 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. 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, homosexuality, security reasons, or for the good of service in selected circumstances. d. 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. 2. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) provides Department of the Army policy, criteria, and administrative instructions regrading an applicant’s request for the correction of a military record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. 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 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 applicant was convicted by a general court-martial of multiple specifications related to possession and sale of heroin. His trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterized the misconduct for which he was convicted. 2. The evidence does not show he was a victim of entrapment. 3. By law, any redress by this Board 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. The evidence shows the court sentenced him to a bad conduct discharge and an appellate court affirmed the findings of guilty and determined the sentence was correct in law and fact. 4. A conviction stands as adjudged and then affirmed by the U.S. Army Court of Military Review unless this Board concludes that the evidence in a case supports clemency. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001190 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001190 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2