IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150011986 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: 21 July 2016 DOCKET NUMBER: AR20150011986 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: 21 July 2016 DOCKET NUMBER: AR20150011986 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 under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD). 2. The applicant states: a. When he began to get involved in the wrong crowd, his Dad, a now deceased former World War II veteran, convinced him to join the Army at the age of 18 years of age. While the Army accepted him into the service and he was proud to be assigned to a Military Intelligence Air Defense unit, he again found himself getting mixed up with the bad crowd. Not long after his permanent assignment to Germany, German Police detained him for crossing the border with marijuana for which he subsequently served 9 months at the Disciplinary Barracks in Fort Leavenworth, pursuant to a plea bargain. b. He, his two children, and wife own and operate a large medical staffing business that employs close to 500 people. He has been embarrassed to speak about his military experience for nearly 40 years and now requests a new DD Form 214 (Report of Separation from Active Duty) showing he received an HD. 3. The applicant provides a self-authored statement. 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 30 June 1976. Upon completion of initial entry training, he was awarded military occupational specialty 16H (Air Defense Artillery Operations Intelligence Assistant). 3. A DA Form 2-2 (Insert to DA Form 2 – Record of Court-Martial Conviction) shows he was convicted by a general court-martial (GCM) on 24 March 1978 of possession of hashish on 20 November 1977 and possession of heroin on 20 November 1977. The sentence imposed by the military judge was confinement at hard labor for 9 months, forfeiture of all pay and allowances, reduction to private/E-1, and a bad conduct discharge (BCD). 4. On 1 May 1978, the convening authority approved the sentence. 5. GCM Order Number 679, dated 4 December 1978, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, shows the sentence was affirmed and ordered the BCD executed. On 21 February 1979, the applicant was discharged accordingly. 6. The DD Form 214 issued to the applicant on the date of his discharge confirms he completed a total of 2 years and 22 days of total active service, of which 210 days was time lost due to confinement. It also shows he was separated under the provisions of paragraph 11-2 (court-martial), Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 7. There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 stated that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or SPCM after completion of the appellate review and after such affirmed sentence has been ordered duly executed. b. It further 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 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 applicant contends he should receive an upgrade of his punitive discharge to an HD because his involvement with the wrong/bad crowd led to his action(s) that resulted in his UOTHC discharge. This claim is insufficiently mitigating to support granting the requested relief. 2. The evidence of record confirms, pursuant to his plea, a GCM convicted the applicant of a charges of (possession marijuana and hashish) which resulted in his BCD. The gravity of the offense for which he was charged warranted his trial by court-martial. His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. 3. 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 punishment imposed. Absent any compelling mitigating factors, the type of discharge directed and the reasons therefore were appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011986 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011986 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2