BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150014554 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: 5 January 2017 DOCKET NUMBER: AR20150014554 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board requests that the Case Management Division, Army Review Boards Agency, provide the applicant a copy of his DA Form 3349, dated 27 January 1978. __________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: 5 January 2017 DOCKET NUMBER: AR20150014554 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: a. Upgrade of his bad conduct discharge (BCD) to honorable. b. A copy of his physical profile (DA Form 3349 (Medical Condition - Physical Profile Record)) that reflects his back injury. 2. The applicant states, in effect: a. In September 1978, he received treatment in the 97th General Hospital because he had broken some vertebrae in his back following a fall while on guard duty. The doctor issued him a permanent profile, and this document was not included when he requested his medical records. b. He was then transferred to Headquarters Troop, where he was falsely accused of selling heroin on two occasions. He had two accusers (one black and one white) and, based on their allegations, he was put in prison. He remained in prison for about 4 to 6 months while awaiting trial. He hired a civilian attorney who told him he faced 40 years of confinement and advised he accept a plea agreement. His attorney also told him a colonel, whose son was addicted to heroin, was trying to make an example of him. He asks the Board to look into this. He is still having trouble with his back and asks for a copy of his physical profile. 3. The applicant provides the second page of a Standard Form 88 (Report of Medical Examination). 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 November 1976. He served in Germany from 7 May 1977 to on or about 31 May 1979. 3. While assigned to a unit in Germany, he was tried by a general court-martial. General Court-Martial Order (GCMO) Number 20, dated 5 October 1979, issued by Headquarters, V Corps, shows: a. One violation of Article 134 (General Article), Uniform Code of Military Justice (UCMJ), by wrongfully selling heroin. Consistent with his plea, he was found guilty. b. The sentence was adjudged on 24 September 1979 and consisted of a BCD, confinement for 1 year, total forfeitures of pay and allowances, and reduction to private/E-1. c. The sentence was approved by the convening authority on 5 October 1979. 4. On 7 December 1979, the U.S. Army Court of Military Review determined the previously approved findings of guilt and the sentence were correct in law and fact. The findings and sentence were affirmed. 5. GCMO Number 162, dated 26 March 1980, issued by Headquarters, U.S. Disciplinary Barracks, showed the sentence, as promulgated in Headquarters, V Corps, GCMO Number 20, dated 5 October 1979, was affirmed. As Article 71(c) had been complied with, the sentence was ordered to be duly executed. He was directed to be confined at the U.S. Disciplinary Barracks, or elsewhere as directed by competent authority, to serve his period of confinement. 6. The applicant was discharged on 14 May 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in accordance with chapter 11 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with an under other than honorable conditions characterization of service. He was issued a Bad Conduct Discharge Certificate. He completed 2 years, 6 months, and 29 days of net active creditable service, with lost time from 1 June 1979 to 1 November 1979 and from 1 November 1979 to 14 May 1980. He was awarded or authorized two marksmanship badges. 7. His available service record contains a DA Form 3349, dated 27 January 1978, which shows he was given a permanent profile "3" for his lower extremities. Section B (Physical Profile), item 6 (Individual has the Defect(s) Listed Below), lists chronic back strain and post-fracture transverse process, L5. REFERENCES: 1. 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. 2. AR 635-200, in effect at the time, prescribed policy and procedures for enlisted separations. a. 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. b. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. A bad conduct discharge is issued pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. He pled and was found guilty. He was given a BCD pursuant to a general court-martial empowered to adjudge such a discharge. His conviction and discharge were effected in accordance with applicable laws and regulations. The appellate review was completed and the affirmed sentence ordered duly executed. 2. All requirements of law and regulation were met and his rights were fully protected. Law prohibits any redress by this Board of the finality of a court-martial conviction. 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. His available service record contains his DA Form 3349, date 27 January 1978. A copy will be provided to the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014554 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014554 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2