BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002051 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: 7 September 2017 DOCKET NUMBER: AR20160002051 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: 7 September 2017 DOCKET NUMBER: AR20160002051 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 (BCD) to honorable. 2. The applicant states he has changed his life since his discharge. a. He contends he should not have been prosecuted by a court-martial. He blames what occurred on being young and naive, and on the actions of an overzealous staff sergeant who did not want him to be promoted. b. He states, in effect, he had a great and privileged career. As evidence of this, he notes he achieved the rank of specialist four/E-4 (promotable) and was awarded an Army Commendation Medal. He was ready to be promoted to E-5 when an issue surfaced about wrongfully using a debit card. c. His youth and inexperience caused him to inadequately defend himself. On the advice of his attorney, he accepted a plea of guilty. d. His life was damaged by this discharge, and there is nothing worse than the stigma associated with a dishonorable discharge (he received a BCD). He went through troubles during his twenties, but now owns a home and has a family. He has worked hard to become a productive citizen. 3. The applicant provides no additional documentary 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 on 17 August 1981. He held military occupational specialty 76V (Materiel Storage and Handling Specialist). Following initial training, he was assigned to Germany on 9 February 1981, and remained until May 1983. He was reassigned to Fort Campbell, KY, arriving on 24 June 1983. 3. On 16 May 1984, his Fort Campbell commander initiated a bar to reenlistment action against him. The stated reasons were five instances of rendering dishonored checks. On 5 June 1984, his battalion commander approved the bar to reenlistment. 4. On 20 July 1984, his commander recommended the bar to reenlistment remain in effect. He stated, since his bar to reenlistment was first set in place, the applicant had written another bad check and had appeared before a civilian magistrate due to a traffic violation. On 31 July 1984, the brigade commander affirmed the bar to reenlistment would remain in effect. 5. While still assigned to Fort Campbell, he was tried by a special court-martial empowered to adjudge a BCD. Special Court-Martial Order Number 111, dated 6 November 1984, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, shows the following: a. The applicant was tried for two violations of the Uniform Code of Military Justice (UCMJ), listed on the order as: (1) Article 121 (Larceny), UCMJ, four specifications as follows: * larceny of $10, guilty * larceny of $150, guilty * larceny of $150, not guilty * larceny of a stereo valued in excess of $100, guilty, except for the word "steal" being substituted with the words "wrongfully appropriate" (2) One specification of Article 134 (False Official Statement), not guilty. b. Sentence was adjudged on 14 September 1984 and consisted of a BCD, confinement for 5 months, forfeiture of $397 per month for 5 months, and reduction to private (PV1)/E-1. c. On 6 November 1984, the convening authority approved only so much of the sentence as provided for a BCD, 3 months of confinement, forfeiture of $397 per month for 3 months, and reduction to PV1/E-1. 6. On 27 March 1985, the U.S. Army Court of Military Review affirmed the courts' findings of guilty and stated the sentence was correct in law and fact. 7. Special Court-Martial Order Number 65, dated 23 July 1985, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, showed the approved sentence of a BCD, 3 months confinement, forfeiture of $397 per month for 3 months, and reduction to PV1/E-1 was affirmed. The portion of the sentence pertaining to confinement had been served. As Article 71(c) had been complied with, the BCD was ordered duly executed. 8. The applicant was discharged accordingly on 22 August 1985. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 9 months, and 28 days of net active creditable service, with lost time from 14 September to 20 November 1984. a. He was awarded or authorized: * Army Achievement Medal * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Grenade Bar b. The separation authority is Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3 (Character of Service/Description of Separation). c. The character of service is shown as BCD and the narrative reason for separation is stated as being court-martial, other. 9. There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his character of service within that board’s 15-year statute of limitations. REFERENCES: 1. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary's Department may extend only to correction of a record so that it reflects actions taken by reviewing authorities under the UCMJ or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 2. AR 635-200 prescribes the policy and procedures for enlisted separations. 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 BCD is issued pursuant only to an approved sentence of a general, or special court-martial that has been empowered to adjudge this discharge. The appellate review must be completed, and the affirmed sentence ordered duly executed. 3. The Manual for Courts-Martial details maximum punishments for each of the punitive articles within the UCMJ: Article 121 – property valued at $50 or less: BCD and confinement for 6 months. Property valued at more than $100: dishonorable discharge and 5 years confinement. DISCUSSION: 1. The evidence of record confirms that on 14 September 1984 he was convicted by a special court-martial empowered to adjudge a BCD. a. He had been charged with committing multiple offenses punishable under the UCMJ. A punitive discharge was an authorized punishment for the offenses charged. b. The appellate review was completed and, following the correction of errors, the sentence was affirmed and ordered duly executed. His conviction and discharge were effected in accordance with applicable laws and regulations. c. Based on the foregoing, it appears all requirements of law and regulation were met, and his rights were fully protected. 2. The applicant states he was young and naive at the time of his misconduct, and has since made important and positive changes in his life. The review for clemency is focused on the period of active service and whether an error or injustice occurred with regard to his court-martial. The argument submitted by the applicant does not offer proof of an error or injustice. 3. The law prohibits any redress of the finality of a court-martial conviction by this Board. The Board 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. The Board is empowered to upgrade the applicant's character of service if it finds compelling evidence indicating clemency is appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002051 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002051 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2