BOARD DATE: 12 September 2017 DOCKET NUMBER: AR20160003356 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: AR20160003356 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: AR20160003356 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 to a general, under honorable conditions discharge or an under other than honorable conditions discharge. 2. The applicant states he is requesting an upgrade of his discharge because he believes his incarceration was sufficient punishment for his actions. He adds that an upgrade of his discharge will help him begin a new career in law enforcement. 3. The applicant provides no additional documentary evidence in support of his application. 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 U.S. Army Reserve on 13 December 1986 for a period of 8 years. Upon completion of training he was awarded military occupational specialty 31K (Combat Signaler). 3. On 14 April 1988, he enlisted in the Regular Army for a period of 4 years. a. He served overseas in Korea from 25 April 1988 through 26 April 1989. b. He was promoted to specialist (SPC)/pay grade E-4 on 1 December 1988. c. He was assigned overseas to Germany on 24 May 1989 and his unit later deployed to Saudi Arabia. 4. Headquarters, 1st Armored Division, Operation Desert Storm, General Court-Martial Order Number 1, dated 28 March 1991, shows the applicant was tried by general court-martial on 22 February 1991. a. He pled guilty to and was found guilty of violating the Uniform Code of Military Justice, Article 115 (Malingering), for an intentional self-inflicted injury on 23 January 1991. b. He was sentenced to reduction to grade E-1, confinement for 2 years, forfeiture of all pay, and to be discharged with a bad conduct discharge. c. On 28 March 1991, the General Court-Martial Convening Authority approved the sentence, except for the part of the sentence extending to a bad conduct discharge, and ordered it executed. 5. Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 77, dated 6 December 1991, confirmed the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered duly executed. 6. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated on 19 December 1991 with a bad conduct discharge as a result of court-martial. He had completed 2 years, 10 months, and 18 days of net active service and he had time lost from 22 February 1991 through 19 December 1991 (301 days in confinement). The separation authority shown is General Court-Martial Order Number 77, dated 6 December 1991. REFERENCES: 1. In reference to the Gulf War, the History Channel website (www.history.com) shows, in pertinent part, on 29 November 1990, the United Nations Security Council authorized the use of "all necessary means" of force against Iraq if it did not withdraw from Kuwait by 15 January 1991. On the morning of 17 January 1991, a massive U.S. led air offensive hit Iraq's air defenses, moving swiftly on to its communications networks, weapons plants, and oil refineries. The coalition effort was designated Operation Desert Storm. A massive allied ground offensive, Operation Desert Sabre, was launched on 24 February 1991, with troops heading from northeastern Saudi Arabia into Kuwait and southern Iraq. The elite Iraqi Republican Guard mounted a defense south of Al-Basrah in southeastern Iraq, but most were defeated by 27 February 1991. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. Chapter 3 (Character of Service/Description of Service) shows in: a. paragraph 3-7b, 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. b. paragraph 3-7c, 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 the service. 3. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends that his bad conduct discharge should be upgraded because he believes his incarceration was sufficient punishment for his actions and he wants to begin a new career in law enforcement. 2. The evidence of record shows the applicant was found guilty of malingering while serving in the theater of operations during a period the United States of America was at war. 3. The applicant's trial by general court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the appellate review. 4. The applicant's contention that the portion of his sentence pertaining to a bad conduct discharge was excessive punishment because he was also sentenced to confinement for a period of 2 years is noted. However, the issue of excessive punishment was a matter he could have raised either during the court-martial process or in his appeal. 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) AR20160003356 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003356 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2