BOARD DATE: 15 March 2016 DOCKET NUMBER: AR20150007689 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: 15 March 2016 DOCKET NUMBER: AR20150007689 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. Enclosure 1 BOARD DATE: 15 March 2016 DOCKET NUMBER: AR20150007689 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 upgrade of his bad conduct discharge (BCD). 2. The applicant states, in effect: * he made a mistake when he was 22 years old; he was young and confused * he had mixed feelings about entering the Army, but was forced to do so by his living conditions * he made mistakes while on active duty because he knew he was not mentally ready, and his bad judgment cost him his career * he was confined 9 months and paid his debt to the military, but feels he should not have to pay for his mistakes the rest of his life * his conviction has affected his ability to get a job and he would like to move forward; he would like the Board to know he is a good person who made mistakes when he was young 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 20 November 1991 at 19 years of age. 3. While assigned to a unit at Fort Riley, KS, he was tried by a general court-martial. General Court-Martial Order (GCMO) Number 13, dated 15 March 1993, issued by Headquarters, 1st Infantry Division (Mechanized (MECH)) and Fort Riley, shows: a. Four violations of the Uniform Code of Military Justice (UCMJ): * one specification of violating a lawful order by having a guest in his barracks room past authorized visiting hours - plea: not guilty, finding: not guilty * one specification of making a false official statement - plea: not guilty, finding: not guilty * two specifications of stealing personal checks - plea: guilty, finding: guilty * two specifications of forging personal checks - plea: guilty, finding: guilty * one specification of committing carnal knowledge - plea: guilty, finding: guilty b. The sentence was adjudged on 27 January 1993, and consisted of a BCD, confinement for 9 months, total forfeitures of pay and allowances, and reduction to private/E-1. c. The sentence was approved by the convening authority on 15 March 1993. 4. Following the approval by the general court-martial convening authority, it appears the U.S. Army Court of Criminal Appeals affirmed the findings and sentence. 5. GCMO Number 51, dated 29 July 1993, issued by Headquarters, I Corps and Fort Lewis, showed the sentence as promulgated in GCMO Number 13, dated 15 March 1993, issued by Headquarters, 1st Infantry Division (MECH) and Fort Riley, was finally affirmed. As Article 71(c) had been complied with, the BCD was ordered to be duly executed. 6. The applicant was discharged accordingly on 1 October 1999. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 7 years, 3 months, and 10 days of net active creditable service, with lost time from 27 January 1993 to 26 August 1993 and excess leave from 30 August 1993 to 1 October 1999. a. He was awarded or authorized: * National Defense Service Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Hand Grenade Bar * Marksman Marksmanship Qualification Badge with Rifle Bar b. The separation authority is Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3. c. The character of service is shown as BCD and the narrative reason for separation is stated as being court-martial, other. REFERENCES: 1. 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. 2. Army Regulation 635-200, in effect at the time, prescribed policy and procedures for enlisted separations. a. 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. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. A bad conduct discharge is issued pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. DISCUSSION: 1. The applicant requests his BCD discharge be upgraded. a. The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. He pled and was found guilty of two charges. He was given a bad conduct discharge pursuant to a general court-martial empowered to adjudge such a discharge. This type of court-martial was warranted given the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. b. All requirements of law and regulation were met and his rights were fully protected. 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 sentence imposed. The applicant provides no evidence which might warrant the Board to grant clemency. 2. Records show the applicant was 19 years of age at the time of his enlistment and age 20 at the time he committed the offenses for which he was convicted. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 3. Given the charges for which the applicant was convicted, the punishment seems appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150007689 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150007689 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2