BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160001234 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: 23 May 2017 DOCKET NUMBER: AR20160001234 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: 23 May 2017 DOCKET NUMBER: AR20160001234 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: a. He was only 17 years old when he joined the Army. He was a follower and always followed orders. He was very successful in his early career by maxing out the Army Physical Fitness Test, and he was an expert shooter. He was the only one out of his company to be chosen for sniper school. b. After basic training and advanced individual training (AIT), he was the first person out of his platoon to be put in for a promotion and was later chosen to be a squad leader. c. He loved being in the military and he served to the best of his ability; however, he made a bad decision that cost him his military career. d. Since he was very young when he when enlisted in the Army, he believed the Army would protect him, and they should have taken on that responsibility. Now that he is a member of Narcotics Anonymous, he knows that he had a disease, and just as with any other disease, the military should have taken care of him, instead of punishing him. e. Former Soldiers from his unit are having a reunion and he would like to be able to attend the function in honor, to stand side by side with his fellow brothers-in-arms and talk about old times about protecting and serving their country. He would like to die with honor and have his BCD upgraded to at least a general discharge. 3. The applicant provides a self-authored statement, dated 11 November 2015 and 7 letters of reference. 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. On 16 July 1986, the applicant enlisted in the Regular Army (RA) at the age 18. Upon completion of initial training and AIT, he was awarded military occupational specialty 11B (Infantryman). 3. On 26 June 1987, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating Article 112a (Wrongful Use, Possession of a Controlled Substance), to wit: wrongfully using cocaine. He was reduced to the pay grade of private (PVT)/E-1, forfeiture of $329.00 pay, extra duty, and restriction for 45 days. 4. Special Court-Martial (SPCM) Order Number 116, issued by Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, CA, dated 28 October 1987, shows the applicant was tried and found guilty on 16 September 1987 of the following charges: a. two specifications of violating Article 86 (Absent Without Leave (AWOL)), UCMJ, to wit: failure to repair on 5 July and 16 July 1987; b. two specifications of violating Article 112a, UCMJ, to wit: wrongful use of marijuana and cocaine; and c. one specification of violating Article 134 (General), UCMJ, to wit: breaking restriction on 19 July 1987. 5. He was sentenced to a BCD, confinement for 3 months, forfeiture of $425.00 pay per month for 3 months, and reduction to the lowest enlisted grade. 6. The sentence was approved and, except for that portion of the sentence extending to a BCD, was ordered executed. The record of trial was forwarded to the Judge Advocate General of the Army for review. 7. On 26 January 1988, the applicant received another NJP for violating a lawful general regulation, to wit: a Fort Ord Regulation regarding alcoholic beverages. He received forfeiture of $157.00 of pay per month for one month. (The form documenting the NJP indicates it had a continuation sheet, which is not available in his record.) 8. On 27 January 1988, the United States Army Court of Military Review upheld the findings of guilty, found the sentence correct in law and fact, and affirmed the findings of guilty and the sentence. 9. A U.S. Army Armor Center (USAARMC) Form 2722 (Medical Examination for Separation Statement of Option), dated 28 January 1988, shows the applicant elected not to undergo a separation medical examination. 10. SPCM Order Number 114, issued by Headquarters, USAARMC and Fort Knox, Fort Knox, KY, dated 28 June 1988, shows that, with the applicant's sentence having been finally affirmed, the BCD was to be executed. 11. The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 1 August 1988 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as the result of court-martial. This form also shows his character of service as "Bad Conduct Discharge with SPCM." The applicant had lost time from 17 September 1987 through 29 November 1987, due to confinement. 12. The applicant provides: a. A letter of reference from a fellow Soldier who states he served with the applicant from 1986 to 1989 (sic) at Fort Ord, CA. He believes that in the 3 years he served with him, he seemed to be a good Soldier and performed his duties. The applicant made a poor decision at that time, and he received a poor discharge as a result. He believes that everyone has made errors in judgement throughout our lives and we later wish that we could take them back. The applicant is his brother-in-arms and is worthy of an upgrade, because had they been called to go to war and die for our country, they all would have been required to go and fight and possibly die. He is trying to change his life to be a better man for society, himself, his family, and his country. b. A letter of reference from an Army veteran that served with the applicant from 1986 to 1989 (sic) at Fort Ord, CA. He states the applicant made a costly mistake that ruined his military career, but before that error, he was a fine Soldier. He is trying to get his life back on track and getting his BCD changed would be a great help in helping him to accomplish his goals. The applicant should have received help in the form of rehabilitation instead of being punished and deserves another chance. c. A letter of reference from the Waukegan Township Assistance Program Coordinator, who states the applicant has been a participant in Waukegan Township's programs since August 2010. He has proven to be a concerned citizen of their community, has volunteered for the Coalition to Reduce Recidivism, and has attended every scheduled appointment without fail. He has been working diligently at maintaining his sobriety, and has made great gains with his efforts and accomplishments. d. A reference letter from a reverend and lieutenant colonel, who states the applicant continues to seek a better way of life. He has known him all his life and he has become a man of responsibility. He has the courage to take on the trials and tribulations of life, learns from them, and develops new strategies from those experiences. He is a positive influence with the younger generations. e. A reference letter from a Federal employee who states he has known the applicant for nearly 10 years. He is always cheerful and his enthusiasm for life is almost contagious. The applicant has a good work ethic and cares about people. He is well-known in their circles as a man of character who can be trusted, is a role mode among his peers, and is an asset to his community. f. A reference letter from a person who states he has known the applicant for over 30 years, and notes that he has been making strides in improving his way of life. g. A reference letter from a person who states he has known the applicant For the past 4 years. As a recovering addict, he can understand what the applicant has gone through. The road to change can be very difficult, but achievable, and he believes the applicant will be successful. He has been attending meetings and spends time with people who have a positive influence on him. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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 3-11 states 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 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 applicant requests, in effect, that consideration be given for clemency regarding his BCD. 2. The evidence of record shows the applicant received one NJP for cocaine use; was convicted by a SPCM for two specifications of drug use, two specifications of failure to repair, and for breaking restriction; and was sentenced to a BCD. After being sentenced, the applicant received another NJP for failure to obey a lawful general regulation. 3. The evidence of record does not indicate the actions taken in this case were in error or unjust. The applicant’s conviction and discharge were effected in accordance with applicable laws and regulations. There is no evidence his rights were violated or that he lacked legal representation. 4. The applicant's trial by court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable law and regulations. 5. The seven letters of reference are noted. They attest to the applicant’s attempts and successes at getting his life back on track and his having sought help for addiction. They support the applicant in his post-service conduct, and note how he often gives back to the community. 6. 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) AR20160001234 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001234 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2