BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160003726 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: 26 September 2017 DOCKET NUMBER: AR20160003726 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: 26 September 2017 DOCKET NUMBER: AR20160003726 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 he was disappointed with the way he was treated in the Army. He did not know he could request an upgrade until recently. 3. The applicant provides a self-authored statement that, in effect, states: a. He was a sergeant (SGT) assigned to Company B, 2nd Battalion, 21st Infantry Regiment, at Fort Stewart, GA. When he first arrived at the company, he was assigned to a squad that was led by a private first class (PFC) promotable to specialist (SPC). b. He complained to the Acting First Sergeant (1SG) about being promised a squad leader position; however, the 1SG told him he would work where he was told and he shouldn't bother him about it. Six or seven months went by and he pleaded with the 1SG for a squad leader position. The 1SG replied, in effect, "You know how I feel about you. You ain't nothing but a Nxxxxx the size of an ant. If I drop a penny on the ground, you would need a step ladder to get over." His heart fell to his feet. He continued to do his job at the motor pool with a PFC as his squad leader. c. One day, he got into a dispute with the 1SG again; however, this time it was about giving the PFC in charge his proper responsibility. He had to perform the PFC's staff duty one night. The 1SG came into the orderly room at 0335 hours and told him he was relieved of his duties. He wondered why the 1SG would come around that time of the morning. He noticed the 1SG called his staff duty runner into his office to witness him saying, "If you want your chapter 16 you have to vouch for me." d. The applicant only had the Post Sergeant Major (SGM)/E-9 to turn to. He had a nervous breakdown. The SGM came by twice and told him to be strong, so he went in front of the lieutenant colonel (LTC) and asked for a special court-martial. The LTC said, "You think you are going to slip through my fingers like that? You are dismissed." The applicant stated the unit's motto and returned to the company area. The 1SG had two noncommissioned officers (NCOs) write statements on him stacking charges, plus the 1SG's statement since his witness took off. e. The 1SG summoned him to see the unit commander. They went inside the commander's office and there were two staff sergeants (SSG) on each side of the door. He was standing at attention when he was told he was going to pre-trial confinement. He replied, "Why sir? My charges are not that bad." The commander told the SSGs to take him to the military police (MP) station. He then had a reason for concern when he heard them say they would hold his court-martial paperwork while he rots in jail. One of the SSGs went inside the orderly room and he warned the other SSG that he had better not put his hands on him. His heart was beating so fast. He got to his car and almost passed out knowing they wanted to put him in jail. f. He left the unit to keep from getting in more trouble because somebody might have gotten hurt. He turned himself in at a later date at a different installation. His unit was called and they requested his return so they could put him in jail. He spent 4 months in jail before going before a court-martial. His mind has been shattered every day since; he now has to take medications. He never went to jail at any other time in his life. 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 26 July 1979. He completed his initial entry training and was awarded military occupational specialty 11B (Infantryman). He progressed through the ranks and was promoted to SGT on 4 September 1982. 3. The applicant was honorably discharged for immediate reenlistment on 15 March 1983. He reenlisted in the Regular Army on 16 March 1983. 4. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 2 August 1984, shows the applicant received nonjudicial punishment (NJP) for violating Article 86 of the UCMJ. Specifically, he was punished for being absent without leave (AWOL) from on or about 17 July 1984 through on or about 20 July 1984. 5. Special Court-Martial Order Number 1, issued by Headquarters, 1st Brigade, 24th Infantry Division (Mechanized) on 18 September 1984, shows the applicant was convicted of violating Article 92 of the UCMJ. Specifically, he was convicted of being derelict in the performance of his duties on or about 20 May 1984 and 6 June 1984, and failing to obey a lawful order on or about 27 June 1984. The sentence was adjudged on 11 July 1984 and approved on 18 September 1984. 6. Special Court-Martial Order Number 21, issued by Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart on 11 April 1985, shows the applicant was convicted of violating the following Articles under the UCMJ: * Article 86 – for failing to report, on or about 30 July 1985 and 1 August 1984 * Article 86 – for being AWOL, from on or about 1 August 1984 through on or about 2 August 1984 * Article 86 – for being AWOL, from on or about 15 August 1984 through on or about 18 January 1985 * Article 91 – for disrespect and disobedience, on 9 August 1984 * Article 95 – for escaping from custody, on or about 15 August 1984 The court sentenced him to be discharged from the service with a BCD, to be confined for 130 days, and to be reduced to the lowest enlisted grade. 7. The U.S. Army Court of Military Review affirmed the approved findings of guilt on 27 September 1985, and determined the sentence was correct in law and fact. 8. Special Court-Martial Order Number 26, issued by U.S. Army Correctional Activity, Fort Riley, KS, on 21 January 1986, shows the applicant's sentence, as promulgated in Special Court-Martial Order Number 21, was affirmed and ordered executed. 9. The applicant was discharged on 3 February 1986. His DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 3, section IV, as a result of court-martial, with his service was characterized as bad conduct. 10. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the 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. Chapter 3, section IV provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been 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 received a BCD pursuant to an approved sentence by a special court-martial, which was warranted by the gravity of the offenses charged at the time. Conviction and discharge were effected in accordance with applicable laws and regulations. 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. 2. 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) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003726 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2