BOARD DATE: 26 May 2016 DOCKET NUMBER: AR20150011592 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 May 2016 DOCKET NUMBER: AR20150011592 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 May 2016 DOCKET NUMBER: AR20150011592 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. 2. The applicant states: a. He served in the Army during two honorable enlistments. The first entailed holding a top secret background investigation (TSBI) clearance and serving on the nuclear surety team as a member of the personal reliability program (PRP). His second enlistment was as a combat medic and during this enlistment he was injured in Wildflecken, Germany. His leg was broken and this would eventually lead to a service-connected discharge on or about 14 August 1990 from Walter Reed Army Medical Center (WRAMC), Washington, DC. The documentation he is enclosing shows the date as 14 July 1990 but he believes the actual date of his discharge was 14 August 1990. b. His service-connected disability was well known when he enlisted in the Army National Guard (ARNG). He was deemed ineligible to deploy so the unit allowed him to stay at Fort Belvoir, VA. This was very rewarding because his son was born on 26 April 1990. c. During 4 July 1991, he was given a 4-day furlough to go to his home in Capital Heights, MD. While home, he and the mother of his son went looking for an apartment. They were sitting in a car talking when a Prince George County police officer came by and harassed them. The situation escalated and the police officer hit him in his right eye with a nightstick severely damaging his eye. His eye is affected to this day. During the assault, Fort Belvoir deemed him absent without leave (AWOL). d. Another son was born on 27 July 1991, and his son's mother was arrested and sent to Maryland State Prison for Woman, MD. He was living in Pottstown, PA, as the lone caretaker for three children aged 4 years, 15 months, and 6 weeks old. As the caretaker of the children, he was unable to attend the court-martial proceedings held at Fort Belvoir. If he had been able to attend, the court would not have been able to try his case in his absence and the outcome would most likely have turned out differently. e. He was not able to obtain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 September 1992 but he would like an upgrade of his under other than honorable conditions characterization of service. He will have achieved 16 years of sobriety this coming October 2015 and all three of his children have grown up and attended college. His son is following in his footsteps and plans to graduate from Syracuse University, Syracuse, NY, in May 2016. f. After Desert Storm, he continued his education and went back to college. He graduated from Syracuse University in May 2007 and the State University of NY (SUNY) Binghamton, Binghamton, NY, in December 2008. He achieved his Licensed Master of Social Worker (LMSW) license in November 2009 and became a Certified Drug and Alcohol Counselor (CADC) in VA in November 2012. He has written four books and has two trademarks. He plans to develop a drug treatment therapy and eventually open substance abuse clinics in NY and VA. 3. The applicant provides: * two DD Form 214 * orders, dated 18 November 1990 * special court-martial order, dated 9 July 1991 * three letters from the Department of Veterans Affairs (VA), dated between 30 March 2012 and 23 March 2015 * DD Form 149 (Application for Correction of Military Records), dated 6 June 2012 * a letter from the Army Review Boards Agency, dated 23 July 2012 * two statements of support 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 (RA) on 21 October 1981 and he held military occupational specialty (MOS) 13B (Cannon Crewmember). He was honorably released from active duty on 20 October 1984 by reason of expiration of term of service (ETS) and he was transferred to the U.S. Army Reserve. 3. He enlisted in the RA on 15 May 1987 and he held MOS 91A (Medical Specialist). He was honorably discharged on 14 July 1990 by reason of ETS. 4. On 31 August 1990, he enlisted in the District of Columbia ARNG (DCARNG) in MOS 91A. He was assigned to the 115th Mobile Army Surgical Hospital (MASH), Washington, DC. 5. On 21 November 1990, he entered active duty as a member of the DCARNG in support of Operation Desert Shield/Desert Storm. 6. Permanent Orders 149-18, dated 30 November 1990, issued by Headquarters (HQ), First U.S. Army, Fort George G. Meade, MD, attached his unit to the U.S. Army Engineer Center and Fort Belvoir, VA, effective 24 November 1990 for the purpose of mobilization and deployment processing (emphasis added). 7. On 28 December 1990, he was reported as AWOL from his assigned unit and was subsequently dropped from the rolls (DFR) as a deserter. He returned to military control on or about 21 February 1991. 8. On 5 March 1991, he was reported as AWOL from his assigned unit and was DFR as a deserter. He returned to military control on or about 3 May 1991. 9. The applicant provides and his record contains Special Court-Martial Order Number 4, dated 9 July 1991, issued by the U.S. Army Fort Belvoir, wherein it shows that on 29 May 1991 he was convicted by a special court-martial of one specification each of being AWOL from 29 December 1990 to 21 February 1991 (56 days) and from 5 March 1991 to 3 May 1991 (60 days). He was sentenced to reduction to private/E-1 and a bad conduct discharge. On 29 May 1991, the sentence was adjudged. 10. There is no evidence that shows he was tried in absentia on 29 May 1991. He was subsequently placed on excess leave while awaiting the appellate review. There is no evidence that shows he was reported as AWOL in July 1991 as he would have been in an excess leave status. 11. Special Court-Martial Order Number 6, dated 2 July 1992, issued by the U.S. Army Fort Belvoir, shows his sentence was affirmed and, Article 71 having been complied with, the convening authority ordered his bad conduct discharge executed. On 14 September 1992, he was discharged accordingly. 12. The DD Form 214 he was issued for this period of service is not available for review with this case. However, it would show that he was discharged from active duty on 14 September 1992 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, by reason of court-martial, with a bad conduct or under other than honorable conditions characterization of service. During this period of service, he completed 1 year, 9 months and 25 days of net active service of which 474 days (or 1 year, 3 months and 16 days) was excess leave. He had 3 months and 26 days of lost time due to being AWOL. 13. There is no evidence that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 14. The applicant provides the following letters from the VA: a. A letter dated 30 March 2012 shows his character of discharge from 21 October 1981 to 20 October 1984 was honorable, from 15 May 1987 to 14 July 1990 was honorable, and from 21 November 1990 to 14 September 1992 was under other than honorable conditions. It stated his combined service-connected evaluation was 40 percent (%) effective 1 December 2011. b. A letter dated 18 August 2014 stated records indicated that VA designated him as a service-connected disabled veteran with a combined disability rating of 50%. c. A letter dated 23 March 2015 stated his combined service-connected evaluation was 50% effective 1 December 2014. 15. The applicant provides the following statements of support: a. In a statement dated 5 December 2013, his mother stated, in part, in early July 1991 the applicant visited her and the white of his right eye was completely red; even his 7 year old daughter commented on it. The applicant told her that the incident occurred on 4 July 1991, while he was on a holiday leave [i.e. excess leave] from Fort Belvoir, when he and his girlfriend were looking for an apartment in Prince George County, MD. A police officer chased him away from his car and hit him in his right eye. b. In a statement dated 20 December 2013, Ms. PD stated on 4 July 1991 a Prince George County police officer chased the applicant from their car and hit him in his right eye with a nightstick. This occurred while the applicant was on leave or pass [i.e. excess leave] from Fort Belvoir. Their son was born just 13 days later on 17 July 1991. The applicant's eye was injured so badly that when he was taken before the magistrate she released him. In the following days, his eye continued to redden and worsen. REFERENCES: 1. Army Regulation 635-200, chapter 3, then in effect set forth the basic policy governing the separation of enlisted personnel and prescribes the policies and procedures for separating members with a bad conduct discharge. It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence was ordered duly executed. a. Paragraph 3-7a 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. 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. 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 evidence of record confirms that after being mobilized to active duty in support of Operation Desert Shield/Desert Storm the applicant went AWOL on two separate occasions. His 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 his bad conduct discharge appropriately characterized the misconduct for which he was convicted. 2. By law, any redress by the ABCMR 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. 3. Although his post service conduct may be noteworthy, the fact remains that he had almost 4 months of lost time during his last period of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011592 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011592 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2