IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150013864 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: 1 November 2016 DOCKET NUMBER: AR20150013864 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: 1 November 2016 DOCKET NUMBER: AR20150013864 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 (BCD) to a general, under honorable conditions discharge (GD) and a change in his narrative reason for separation. 2. The applicant states his characterization of service is inequitable because he was targeted for selective prosecution due to his race. He served with the 2nd Infantry Division, Fort Riley, Kansas. The command did not want black men in the unit and gave disciplinary action and prosecutions to black men in order to weed them out. There were many white men doing the same things he was doing; however, they were not punished. It is unfair that he should bear the burden of racism his entire life. He was discharged for a minor violation of his suspended sentence. A special court-martial suspended his discharge sentence; however, a few months later he went off base for one night without permission. His suspended discharge was vacated and he was discharged. This minor discipline problem should not cause him to lose recognition as a veteran by the Department of Veterans Affairs. 3. The applicant does not provide any additional 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 16 September 1975. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating various articles of the UCMJ by committing the following offenses: * being absent without authority on 3 July 1976 * wrongfully possessing a Ration Control Plate with intent to deceive on 7 September 1976 * being absent from his unit on or about 27 October 1976 and failing to go to his appointed place of duty at the prescribed time on 24 September and 25 September 1976 * being absent from his unit from on or about 15 May 1978 to on or about 18 May 1978 * breaking restriction on or about 22 May 1978 4. Special Court-Martial Order Number 78, issued by Headquarters, 1st Infantry Division and Fort Riley, Fort Riley, Kansas, dated 6 April 1978, shows he pled guilty and was found guilty of: a. wrongfully selling a dangerous drug, to wit, phencyclidine, on or about 14 October 1977; b. wrongfully selling a dangerous drug, to wit, phencyclidine, on or about 7 December 1977; and c. wrongfully possessing a dangerous drug, to wit, phencyclidine, on or about 7 December 1977. 5. On 15 March 1978, the court sentenced him to confinement at hard labor for 5 months, forfeiture of $250.00 pay per month for 6 months, reduction to the rank/grade of private/E-1, and a BCD. 6. On 6 April 1978, his sentence was approved; however, his BCD was suspended until 14 September 1978, at which time, unless the suspension was sooner vacated, the suspended portion was to be remitted without further action. 7. Special Court-Martial Order Number 322, issued by the U.S. Army Retraining Brigade, Fort Riley, Kansas, dated 12 April 1978, shows the unexecuted portion of his sentence to confinement was suspended until 21 August 1978, at which time, unless sooner vacated, the suspended portion of the sentence was to be remitted without further action. 8. On 17 May 1978 the U.S. Court of Military affirmed his sentence. 9. Special Court-Martial Order Number 632, issued by U.S. Army Retraining Brigade, Fort Riley, Kansas, dated 29 June 1978, shows the suspended portion of his sentence to confinement was vacated and the suspension of his BCD was vacated. 10. On 7 August 1979, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a separation program designator (SPD) code of JJD. Army Regulation 635-5-1 (Separation Documents), in effect at the time, showed that SPD code JDD indicated separation of enlisted personnel by reason of "other than desertion (courts-martial)." His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received an under other than honorable conditions characterization of service. He completed a total of 3 years, 6 months, and 17 days of creditable service with 114 days of lost time. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or BCD. Paragraph 11-2 provided that a BCD would be given pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed sentence ordered duly executed. b. Paragraph 1-9d provided that an honorable discharge was 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. Paragraph 1-9e provided that a general discharge was 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States 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. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the reasons for separating Soldiers from active duty and their corresponding SPD codes will be entered on the Soldiers' DD Forms 214. It states that SPD code "JJD" is the appropriate code to assign to Soldiers who are discharged due to court-martial. DISCUSSION: 1. The applicant contends he was targeted for disciplinary action due to his race. Notwithstanding his personal statement, the preponderance of evidence shows he had a history of misconduct, violating numerous articles of the UCMJ for which he accepted NJP. Ultimately he pled guilty and was found guilty of possessing and selling a dangerous drug. On 15 March 1978, the court sentenced him to confinement at hard labor for 5 months, forfeiture of $250.00 pay per month for 6 months, reduction to the rank/grade of private/E-1, and a BCD. 2. His BCD was suspended until 14 September 1978, and the unexecuted portion of his sentence to confinement was suspended until 21 August 1978. However, on 29 June 1978, the suspended portion of his sentence to confinement was vacated and the suspension of his BCD was vacated. His record is void of the facts and circumstances that led to the vacation of the suspended portions of his sentence. 3. The evidence shows the applicant's 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 law and regulations and the discharge appropriately characterized the misconduct for which he was convicted. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. The ABCMR cannot retry the applicant's case. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013864 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013864 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2