IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150011810 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 IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150011810 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. IN THE CASE OF: BOARD DATE: 28 July 2016 DOCKET NUMBER: AR20150011810 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 that he was an impressionable young adult while serving on active duty in 1980. He was assigned to a unit on Fort Lewis, Washington, in which racism prevailed. a. He states that he sustained an injury while on active duty. He was hit in the back by a trailer hitch while working in the motor pool. He then developed other medical issues related to the injury. b. He was discharged for trying to cash a check (worth less than $100.00) at a "Money Tree" outlet. He was court-martialed and received a sentence of nine months confinement and the loss of two-thirds of his pay. He states that the punishment was too harsh for the offense he committed. c. He adds that he regrets the incident and is sorry for his actions. He states that an upgrade of his discharge will allow him to obtain medical benefits at the Department of Veterans Affairs (VA). (He refers to a letter, dated 1 July 2015, and a VA claim number that he is appealing.) 3. The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 U.S. Army Reserve on 14 February 1980 for a period of 6 years. At the time he was 18 years of age. On 26 March 1980, he further enlisted in the Regular Army for a period of 3 years. a. Upon completion of training he was awarded military occupational specialty (MOS) 16S (MANPADS Crewman). b. He was assigned to Fort Lewis, WA, on 28 July 1980, and promoted to private first class (PFC)/pay grade E-3 on 26 March 1981. 3. A Standard Form (SF) 93 (Report of Medical History), prepared by the applicant on 21 May 1981 for the purpose of his separation examination, shows he entered, "fair health, except for occasional back pain, sometimes." 4. An SF 88 (Report of Medical Examination), dated 21 May 1981, shows the examining physician entered the applicant's Physical Profile as "111111" and found the applicant qualified for separation. 5. Headquarters, 9th Infantry Division, Fort Lewis, WA, General Court-Martial Order Number 67, dated 4 December 1981, shows the applicant was tried by a general court-martial on 19 October 1981. a. He was found guilty of violation of the Uniform Code of Military Justice: * Article 123 (Forgery), two specifications, for – * on 2 March 1981, with intent to defraud, falsely making in its entirety a certain check (in an amount of more than $100.00) * on 6 March 1981, with intent to defraud, falsely making in its entirety a certain check (in the amount of $20.00) * Article 134 (General article) for, on 12 March 1981, wrongfully having in his possession marihuana b. He was sentenced to forfeit $350.00 pay per month for nine (9) months, to be confined at hard labor for nine (9) months, and to be discharged with a bad conduct discharge. c. On 4 December 1981, the General Court-Martial Convening Authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of $300.00 pay per month for nine (9) months, and confinement at hard labor for nine (9) months. He also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 6. The applicant was reduced to private/pay grade E-1 on 4 December 1981. 7. Headquarters, Combined Arms Center, Fort Leavenworth, KS, General Court-Martial Order Number 133, dated 30 April 1982, remitted the unexecuted portion of the sentence to confinement, effective 3 May 1982. 8. Headquarters, U.S. Army Judiciary, Falls Church, VA, letter, dated 8 June 1982, subject: Order of United States Court of Military Appeals Denying Petition for Grant of Review in the Case of United States versus [applicant], shows the U.S. Court of Military Appeals denied the applicant's petition for a grant of review. 9. Headquarters, U.S. Army Armor Center, Fort Knox, KY, General Court-Martial Order Number 41, dated 6 August 19892, confirmed the applicant's court-martial sentence was affirmed. The unexecuted portion of the sentence to confinement having been remitted on 3 May 1982 and the provisions of Article 71(c) having been complied with, the sentence was ordered duly executed. 10. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was separated on 31 August 1982 with a bad conduct discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial, other. He had completed 1 year, 10 months, and 22 days of net active service this period and he had 196 days of time lost. REFERENCES: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 prescribes the policies and procedures for separating members with a bad conduct discharge. It stipulates that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Chapter 3, 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. c. Chapter 3, 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. 2. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the 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. 3. Title 38, U.S. Code (Veterans' Benefits) governs the VA and prescribes the rules and regulations which are necessary or appropriate to carry out the laws administered by the VA. DISCUSSION: 1. The applicant contends that his bad conduct discharge should be upgraded because: * he was young and impressionable * he was assigned to a unit in which racism prevailed * he sustained an injury while on active duty * his punishment was too harsh for the offenses he committed * he desires to obtain VA medical benefits 2. The applicant successfully completed training, was awarded MOS 16S, and he attained the rank of PFC, which demonstrates his capacity for satisfactory service and argues against his contention that he was young and immature. 3. The applicant's separation physical examination documents that he suffered from occasional back pain; however, the examining physician did not find any unfitting medical conditions. Accordingly, the physician found the applicant medically qualified for separation. 4. The applicant's trial by general court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the appellate review. 5. The applicant's allegations of racism and harsh punishment are noted. However, there is no evidence of record to support his allegations of racism. In addition, both the allegation of racism and harsh punishment were matters he could/should have raised either during the court-martial process or in his appeal. 6. The applicant is advised that the administration and granting of veterans benefits does not fall under the purview of the ABCMR. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011810 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011810 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2