IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150004490 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. 2. The applicant states: * during confinement at Fort Riley, KS, he sustained a knee injury during physical training and he never fully recovered from this injury * this injury has been diagnosed as a torn meniscus by his local orthopedic physician * he underwent surgery on 10 February 2015 and he is now recovering from surgery; the cost came to $12,000 but he did have insurance * the repair to his knee should have been performed by the military because it occurred during his enlistment period and before discharge * this injury is documented in his records and he feels if this problem had been rectified during his service, he would not have this problem some 32 years later * it has been bordering on a disability for all these years but he had no way to get it taken care of because of his characterization of service * if he had been able to get his discharge changed to general, he could have received the medical help he needed long ago 3. The applicant does not provide any additional 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 22 July 1980. He held military occupational specialty 98G (Electronic Warfare Cryptologic Operations Specialist). 3. His DA Form 2-1 (Personnel Qualification Record) shows he served in Korea from 16 March 1982 to 7 June 1983. It also shows he was awarded or authorized the Overseas Service Ribbon, Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Marksman Marksmanship Qualification Badge with Grenade Bar. 4. On 27 August 1982, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty, negligently failing to report for duty in the proper uniform, and wrongfully communicating a threat to another Soldier. He appealed the punishment and his appeal was denied. 5. On 8 June 1983, he was arraigned and tried at a special court-martial at Headquarters, U.S. Army Element, Combined Field Army, Korea for violating the Uniform Code of Military Justice. He was convicted of the charges and specifications of: * Charge I, one specification of theft * Charge II, two specifications of failing to show valid documentation showing lawful possession and disposition of controlled items * Charge III, one specification of making a false official statement 6. The court sentenced him to a confinement at hard labor for 4 months, a forfeiture of $382.00 pay per month for 4 months, and a bad conduct discharge. 7. On 29 July 1983, the convening authority approved the sentence but suspended the confinement at hard labor in excess of 3 months for 1 year, and except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. The applicant was confined at Fort Riley, KS. 8. On 10 and 23 August 1983, the applicant signed two statements waiving his medical examination in conjunction with his separation. He indicated he understood that he was not required to undergo a medical examination but could request one if he so desired. 9. On 15 November 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 10. There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review with respect to any matters of law. 11. Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, Special Court-Martial Order Number 104, dated 26 March 1984, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. 12. The applicant was discharged on 11 April 1984. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, with a bad conduct discharge. This form further shows he completed 3 years, 6 months, and 4 days of creditable active military service with lost time from 8 June 1983 to 22 August 1983. 13. On 3 June 1988, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable. As a result, the ADRB denied his petition for an upgrade of his discharge. 14. 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. 15. Army Regulation 635-200, 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. 16. Army Regulation 635-200, 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's trial by a special court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 2. He was given a bad conduct discharge pursuant to an approved sentence of a special court-martial. The appellate review was completed and the affirmed sentence was ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this 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. 4. Nothing in his records supports his contention that he was injured while doing physical training in confinement. He was confined from 8 June 1983 to 22 August 1983. He claims he was injured while in confinement, yet he signed two statements on 10 and 22 August 1983 waiving his right to a medical examination. 5. His service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Clemency in the form of an honorable or general discharge is not warranted in this case. There is insufficient evidence to support granting him the requested relief. 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) AR20150004490 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004490 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1