IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150015128 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: 25 October 2016 DOCKET NUMBER: AR20150015128 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: 25 October 2016 DOCKET NUMBER: AR20150015128 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 an under other than honorable conditions discharge or a general discharge (GD). 2. The applicant states, in effect: a. His BCD as a result of a court-martial was inequitable due to cognitive defects caused by mental, emotional, and financial distress brought about after being confined in a civilian prison. His discharge was improper because the command never provided him any rehabilitation, only punishment. He never received his final BCD. b. He is ashamed and reluctant to reminisce about the regretful, naughty, and naïve behavior he demonstrated during his adolescent stage while in the military. His juvenile history was not the best prior to his enlistment into the U.S. Army in 1978. He had a bright future with the Army, received a bonus, and was considered for an accelerated promotion for exceptional duty performance. c. On one particular trip to Memphis and Nashville, TN, he had car trouble. His vehicle overheated and he warped the valve heads on his engine. He ended up having the car towed and repaired; however, the cost of the repairs were beyond what he could afford, so he boarded a bus to Jackson, TN. While there he met a couple of guys and had a few drinks. They stole a money bag from a businessman and divided the money up. He went back to Memphis to retrieve his car from the repair shop and drove back to Fort Sill, OK to report to duty. Upon his arrival, he was approached by his first sergeant and the military police who informed him that he was under arrest; he had a warrant out on him in Jackson, TN for "strong arm" robbery. He was escorted off post and turned over to civilian authorities in Lawton, OK, where he remained until his extradition back to Tennessee. d. His command never considered the possibility that he committed the offense as a result of cognitive defects caused by the mental stress of prison. After his release from civilian confinement, he was returned to military authorities. His commanding officer never afforded him an opportunity for readjustment or any type of rehabilitation back to a military lifestyle. e. He was eventually convicted of a lesser charge of grand larceny and sentenced to 4 years on a county prison farm. After serving 4 months, he was granted a suspended sentence with the terms of returning to the Army. However, shortly after returning to active duty, and not yet adjusting back to a military state of mind, he was convicted in November 1979 by a special court-martial (SPCM) of an assault charge on a noncommissioned officer (NCO). He was sentenced to 3 months of confinement and hard labor at Fort Riley, KS. f. After the completion of his sentence, he was sent to Fort Benning, GA where his destructive behavior continued to manifest along with mounting financial woes. He turned to the use and sale of drugs, and ended up being arrested and charged. He received a SPCM in October 1980 and he was sentenced to serve 6 months in Fort Leavenworth, KS, forfeiture of 3/4 of his pay, and a BCD. g. Upon his release from confinement, he was sent to the U.S. Personnel Control Facility at Fort Bragg, NC, where he participated in the programs offered there for over 5 months, receiving virtually no pay due to the forfeitures. Eventually, he made the irrational decision to take excess leave not knowing or understanding that he would be forfeiting or waiving his rights to have his punitive discharge set aside and possibly be reinstated back into the Army for the remaining term of his service. h. More specifically, his command should have taken notice of the persistent behavioral patterns demonstrated by his actions and offenses that were being committed by a young, under privileged juvenile delinquent from an abusive family that should have warranted closer supervision or perhaps group therapy. He is remorseful for his actions due to being young and naïve during his early years in the military. 3. The applicant provides: * DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 9 August 1979 * DA Forms 4187 (Personnel Action) * DA Forms 268 (Report for Suspension of Favorable Personnel Actions) * DA Form 428 (Application for Identification Card) * DA Form 2-1 (Personnel Qualification Record) * DA Form 2-2 (Insert Sheet to DA Form 2-1) * Report of Result of Trial, dated 5 December 1980 * Orders 28-16, issued by the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated 10 February 1981 * SPCM Order Number 31, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 27 February 1981 * nonjudicial punishment (NJP) acknowledgement of rights and waiver, dated 3 May 1981 * letter issued by the Commander, Headquarters Command, dated 5 August 1981 * U.S. Army Court of Military Review, dated 19 January 1982 * SPCM Order Number 150, issued by Headquarters XVII, Airborne Corps Fort Bragg, NC, dated 14 December 1982 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. On 16 August 1978, the applicant enlisted in the Regular Army. 3. Two DA Forms 4187 show on: * 7 June 1979 the applicant was apprehended by civil authorities and taken to the Lawton City Jail, Lawton OK for armed robbery * 20 July 1979, he was returned to military authorities pending civilian trial 4. On 9 August 1979, the applicant received NJP for being absent without leave (AWOL) on 6 June 1979. 5. A DA Form 2627, dated 31 August 1979, shows the applicant received NJP for failing to obey a lawful order from an NCO and for being disrespectful toward an NCO. 6. SPCM Order Number 2, issued by U.S. Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 15 January 1980, shows the applicant was convicted at a SPCM on 26 November 1979, for being AWOL, assault, being disrespectful in language and deportment, and failing to obey a lawful order from an NCO. 7. A DA Form 2627, dated 20 February 1980, shows the applicant received NJP for two specifications of assault and two specifications of wrongfully communicating a threat. 8. DA Forms 4187 show on: * 9 April 1980, he was sentenced in civilian court to serve a maximum of 4 years in the Madison County Workhouse in Jackson, TN * 14 October 1980, he was apprehended by civilian authorities 9. A Report of Results of Trial, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 5 December 1980, shows the applicant was convicted by a SPCM of wrongful possession of a controlled substance (marijuana), resisting apprehension, and wrongful attempt to possess amphetamines. He was found guilty of all charges and specifications. The sentence adjudged was confinement at hard labor for 6 months, a forfeiture of pay of $334 for 6 months, and a BCD. 10. SPCM Order Number 31, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, dated 27 February 1981, shows the convening authority approved the sentence, but the execution of that portion of the sentence adjudging confinement in excess of 3 months was suspended for 6 months from the date of this action. 11. A DA Form 2627, dated 5 May 1981, shows the applicant received NJP for failing to obey a commissioned officer and dereliction in the performance of his duties. 12. A memorandum, dated 5 August 1981, issued by Headquarters Command shows the applicant had no desire to participate in, nor was he a good prospect for the clemency program. 13. A DA Form 4187, dated 28 September 1982, shows he was arrested on 23 September 1982 by civil authorities and confined in the Cumberland County Jail in Fayetteville, NC. 14. SPCM Order Number 150, issued by U.S. Headquarters XVII, Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 14 December 1982, affirmed the findings and the sentence announced in SPCM Order Number 31. 15. On 30 December 1982, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial with a BCD. He completed 3 years, 3 months, and 22 days, with time lost from 6 June to 18 July 1979, 9 April to 6 August 1980, and from 12 October 1980 to 16 February 1981. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge (HD) 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 GD 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 HD. c. An under other than honorable conditions (UOTHC) discharge is an administrative separation from the service. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in the following circumstances: (1) when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Army. (2) when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of members of the Army. d. Chapter 11 of the regulation in effect at the time provided 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. 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 his BCD was inequitable due to cognitive defects caused by mental, emotional and financial distress brought about after being confined in a civilian prison and that his discharge was improper because his command never sought any rehabilitation for him. 2. Based on the seriousness of the misconduct for which the applicant was convicted, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. 3. The applicant was given a BCD pursuant to an approved sentence by a SPCM, which was warranted by the gravity of the offenses of which he was convicted. His military convictions and discharge were effected in accordance with applicable laws and regulations. The appellate review was completed and the affirmed sentence ordered duly executed. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 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. 5. Clemency is an act of mercy, or instance of leniency, to moderate the severity of punishment. The evidence of record shows the applicant had no desire to participate in the clemency program at the time of his SPCM. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015128 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015128 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2