IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150002516 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) to a general, under honorable conditions discharge (GD) and correction of his narrative reason for separation. 2. The applicant states: a. he joined the Army in 1973 to better his life at the age of 19 years old, he completed his initial period of honorable service in 1975, and he reentered the Army in 1978 due to personal financial difficulty; b. he was separated from the Army on 9 September 1980, as a result of a special court-martial (SPCM) conviction for assaulting his senior non-commissioned officer (NCOIC); c. he takes responsibility for his actions during his second enlistment and acknowledges he developed an abuse of alcohol which led to his downfall as a Soldier in the military and subsequently as a civilian until he became sober in 1999; d. his personal issues with alcohol were exacerbated by a dysfunctional command that was disbanded shortly after his conviction; e. the incident that led to his discharge resulted from his undiagnosed alcohol abuse and anger issues; f. alcohol led him down a destructive path which included episodes of violence and interactions with the criminal justice system until he took responsibility for his addiction anger to begin down a path to be a productive member of society; g. he only received one civilian infraction while serving a 13-year prison sentence after getting into a street fight that led to a man’s death; h. upon his release from prison in 2012, he enrolled at the Blue Ridge therapeutic program and community in Ridgecrest, North Carolina and is in his second year in the program which helps him live a constructive and sober life; and i. he has worked in multiple veterans and other established programs to better himself, however his the characterization of his discharge is the only roadblock holding him back from employment opportunities. accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates as indicated: 3. The applicant provides: * counsel’s brief * affidavit * two SPCM Orders * United States Army Judiciary Court Notice to Accused * DA Form 2-2 (Insert Sheet to DA Form 2-1/ Record of Court-Martial Conviction) * DA Form 2-1 Personnel Qualification Record) * DD Form 214 (two) * Offender Public Information * 17 certificates of completion * Black Mountain Recreation and Parks letter COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests an upgrade of the applicant’s BCD to GD. 2. Counsel reiterates the applicant’s contentions and states: a. the applicant’s request is timely because he did not understand he had the opportunity and right to request a change in his BCD until the year 2013, when Department of Veterans Affairs (VA) staff members encouraged him to seek legal counsel to request an upgrade of his discharge and after attaining said counsel, he discovered many more errors in his discharge processing; b. a brief summary of the applicant’s military service indicating he received an honorable discharge at the end of his first enlistment; c. during the applicant’s second enlistment period, he was assigned to a unit led by toxic leadership which allowed for an unproductive, unhealthy, and unsafe environment for Soldiers that resulted in organized fights, heavy drinking, and racial tensions; d. the applicant struck his noncommissioned officer (NCO) and other unit personnel as a result of organized fights where his size and strengths caused significant injury to several individuals including a broken jaw; e. the applicant does not recall and the SPCM order sentencing him to the BCD order does not indicate if he was afforded counsel or that he waived counsel, which if true proves a tremendous error occurred thereby warranting clemency in this matter and an upgrade of his characterization of service to a GD; f. upon his appeal to the U.S. Army Court of Military Review, that court found that inadmissible evidence regarding a prior conviction was presented during the trial but withstood the verdict; g. the applicant’s record fails to show that he received a psychological evaluation or counseling throughout his military service; h. the applicant should have received a substance abuse evaluation and treatment through the Army and the failure of his command to act led to the circumstances wherein the applicant received a BCD; i. his command’s failure to act led to the circumstances that resulted in his BCD; j. current regulations provide for processing Soldiers through an Army substance abuse program which addresses the issues proactively though treatment for Soldiers who are eligible to be restored to duty; l. during his incarceration from 1999 to 2012, the applicant utilized rehabilitative services, anger management and educational classes, and job training to complete various courses and degrees in addition to successfully completing a long term therapeutic program for chronic substance abusers with the purpose of rehabilitation and to gain employment; m. since receiving treatment, the applicant has remained an active and productive member of his community and has and continues to maintain his sobriety; and n. if the applicant’s command had recognized his substance abuse issues while on active duty and if the Army had substance abuse programs in place as it currently has, the applicant could have obtained treatment and potentially have remained an effective Soldier. 3. Counsel provides: * counsel’s brief * self-authored affidavit * Special Court-Martial Order with Review and Affirmation * DA Form 20B (Insert to DA Form 2-1 - Record of Court-Martial Conviction) * DA Form 20 (Personnel Qualification Record) page 4 only * DD Form 214 (Report of Separation from Active Duty) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * North Carolina Department of Public Safety - Offender Public Information * seventeen course completion certificates and/or diplomas * Black Mountain Recreation and Parks letter 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 initially enlisted and served in the Regular Army (RA) from 13 November 1973 to 4 November 1975. The DD Form 214 he received shows he completed 1 year, 11 months, and 22 days of creditable active duty service and received an honorable discharge (HD). 3. On 7 June 1978, the applicant reentered active duty. He was trained in and awarded military occupational specialty 16P (Short Range Missile Crewman). 4. A DA Form 2-2 (Insert Sheet to DA Form 2-1 – Record of Court-Martial Conviction) lists the following two court-martial orders: a. Headquarters, 6th Battalion, 56th Air Defense Artillery, Summary Court-Martial (SCM) Order Number (#) 4, dated 13 July 1979, shows he was convicted by SCM on 13 July 1979 for striking a noncommissioned officer (NCO) in the face with his fist and for being disrespectful in language to a NCO on 21 June 1979. The sentence imposed by the military judge was confinement at hard labor for 30 days. b. 32nd Army Air Defense Command, SPCM Order # 12, dated 28 December 1979, shows he was convicted by SPCM on 20 October 1979 for assaulting a Soldier in the rank of specialist four (SP4) by hitting him in the mouth with his fist on 8 September 1979; for communicating a threat to a private (PV2) on 8 September 1979; and for being disrespectful to a NCO on 9 September 1979. The sentence imposed by the military judge was confinement at hard labor for 60 days and a BCD. (The “DISTRIBUTION” lists shown on the final page of this official SPCM order specifies by rank and last name, the military judge (MJ), trial counsel (TC), and defense counsel (DC). 5. On or about 14 July 1979, a DA Form 4126-R (Bar to Reenlistment) was initiated against the applicant. It shows he received non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for assault. 6. On 6 August 1979, the applicant underwent a mental status evaluation which shows: * his behavior and thought content were normal * he was fully alert and oriented * his mood was level * his thinking process was clear * his memory was good * he was mentally responsible and had no significant mental illness * he was able to adhere to the right * he met retention requirements * he had the mental capacity to understand and participate in separation proceedings 7. A Standard Form 88 (Report of Medical Examination) dated 6 August 1979, shows the applicant underwent a separation examination and was determined not to be drug-dependent or an opiate abuser. He was determined qualified for worldwide service. 8. On 9 April 1980, the U.S. Army Court of Military Review published SPCM Order #14449, which the sentence resulting from the applicant’s SPCM conviction was reassessed because "evidence that the appellant had been convicted by a summary court-martial (in July 1979 for being disrespectful to a Sergeant and striking him with his fist) was admitted without any showing that appellant had been advised of his right to consult with counsel before deciding whether to object to trial by summary court-martial." The court determined that there was no doubt that the appellant would have been sentenced to a punitive discharge, even if the inadmissible previous conviction had not been introduced as evidence. The findings of guilty were affirmed and based on the error noted, and the court reassessed and affirmed only so much of the sentence that provided for a BCD and confinement to hard labor for 30 days. 9. On 5 May 1980, the applicant acknowledged receipt of a copy of the decision of the U.S. Army Court of Military Review and advice regarding of his rights to petition the U.S. Court of Military Appeals for a grant of review with respect to any matter of law within 30 days. There are no documents in the applicant’s record to show he took any further action on this matter. 10. SPCM Order Number 78, dated 9 September 1980, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, pursuant to Article 71c, affirmed the reassessed sentence and ordered it duly executed. On 19 September 1980 the applicant was discharged accordingly. 11. The DD Form 214 he was issued confirms he was separated under the provisions of Chapter 11, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of court-martial. It also shows he was assigned a Separation Program Designator (SPD) code "JJD" and he completed a total of 4 years and 11 days of active duty military service. 12. The applicant’s military record does not contain any evidence to show he suffered from any physical or mental health condition that warranted his processing through medical channels. It also contains no evidence to show his use of alcohol or that he committed any alcohol related offenses. 13. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 14. The applicant provides multiple certificates showing his degrees, training courses, and programs he completed subsequent to his military service. He also provides a letter from Clack Mountain Recreation and Parks which provides his volunteer employment history beginning in August 2012 showing he demonstrated excellent communication skills and had a positive work ethic. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. It states 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. It 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 11 provided that an enlisted Soldier will be given a BCD pursuant only to an approved sentence of a general court-martial or SPCM after completion of the appellate review and after such affirmed sentence has been ordered duly executed. 16. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), the reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The version of the regulation in effect at the time stated that the SPD code of "JJD" was the appropriate code to assign Soldiers separated under the provisions of paragraph 11, Army Regulation 635-200, by reason of court-martial. 17. 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 AND CONCLUSIONS: 1. The applicant’s contentions explaining why his BCD should be upgraded to a GD were carefully considered. There is insufficient evidence to support his contentions. 2. The applicant contends he served under a toxic command that fostered organized fights, heavy drinking and racial tension. The evidence of record fails to contain and the applicant did not provide any evidence to support this portion of his claim. 3. The applicant contends he suffered from alcohol abuse and his command’s failure to act or to refer him for a substance abuse evaluation led to the circumstances which resulted in his receipt of a BCD. The evidence of record does not contain any evidence to show he suffered from alcohol abuse. In fact, his separation examination confirms he was not drug dependent or an opiate abuser and he was further cleared for world-wide service, confirming he was medically and mentally fit for service had he not been subject to punishment by the SPCM. 4. The applicant contends inadmissible evidence was presented during his SPCM. The evidence of record confirms the U.S. Army Court of Military Review found that because evidence of the applicant’s prior SCM conviction was admitted into evidence during his SPCM without any showing that he had been advised of his right to consult with counsel before deciding whether to object to trial by SCM, that this SCM conviction was inadmissible. However, this court also determined there was no doubt that the applicant would have been sentenced to a punitive discharge even if the inadmissible previous conviction had not been introduced as evidence. Also, had the SCM removed and/or not introduced into evidence, an Article 15 for assault remained in his OMPF. The court further affirmed the guilty findings and reassessed the applicant’s sentenced based on the error noted to 30 days confinement at hard labor and a BCD. 5. The counsel contends the applicant was denied or may have been denied his right to counsel during his SPCM. Based on the “distribution” list shown in SPCM #12, it is clear defense counsel was present. Accordingly counsel’s allegations are without merit. 6. The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offense for which he was charged. His conviction, appellate review, and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. 7. 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 punishment imposed. Given the applicant’s undistinguished record of service and absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency in the form of either a fully honorable or a general under honorable conditions discharge is not warranted in this case nor is there sufficient justification to support changing his narrative reason for separation and its associated administrative codes. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150002516 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150002516 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1