IN THE CASE OF: BOARD DATE: 21 January 2016 DOCKET NUMBER: AR20150007770 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 1987 bad conduct discharge to an honorable discharge. 2. The applicant states: * he has been a good citizen since his situation in 1987, more than 25 years ago; he has not been in trouble with the law * he is now a family man, caring for his family and would like to be able to be a better provider * he knows what he did was wrong and he has straightened out his life * he is proud of his accomplishments and he is sorry for his actions 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 2 August 1983 and he held an infantry specialty. He was promoted through the ranks to specialist four/E-4. 3. He was awarded or authorized the Army Achievement Medal, Army Service Ribbon, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 4. On 24 April 1985, at Fort Hood, TX, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using marijuana. 5. On 8 October 1985, also at Fort Hood, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana. 6. On 14 January 1986, he departed his unit in an absent without leave status and on 14 February 1986, he was dropped from the rolls as a deserter. He returned to military control on 27 April 1986. 7. On 15 July 1986, he was convicted by a general court-martial of one specification of desertion from 14 January to 24 April 1986, two specifications of wrongful distribution of cocaine, and one specification of wrongful possession of cocaine. The court sentenced him to reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, confinement for 42 months, and a bad conduct discharge. 8. On 25 August 1986, the convening authority approved the sentence and except for the bad conduct discharge, the sentence was ordered executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 9. On 17 October 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 10. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 107, dated 27 February 1987, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 11. He was accordingly discharged from the Army on 10 April 1987. The DD Form 214 he was issued shows he was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), as a result of court-martial. This form further shows his character of service as bad conduct. He completed 2 years, 5 months, and 12 days of creditable active military service and he had lost time from 14 January to 1 August 1986 and from 2 August 1986 to 10 April 1987. 12. 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. 13. Army Regulation 635-200 (Personnel Separations) provides for the following characters of service: a. Paragraph 3-7a states 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 states 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 evidence of record shows his trial by a general court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 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. Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency is not warranted in this case. 3. Based on his record of serious misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. He does not meet the criteria for an honorable or a general discharge. 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) AR20150007770 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007770 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1