BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015228 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: 31 January 2017 DOCKET NUMBER: AR20150015228 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. BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20150015228 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 dishonorable discharge. 2. The applicant states: a. He is currently ineligible to receive Department of Veterans Affairs (VA) benefits due to a bad conduct (i.e., dishonorable) discharge from the Army in 1987. He was sentenced to 25 years of imprisonment, 10 of those years he was on parole, and he served each year without incident or any disciplinary actions. He wants to apologize for the decisions that he made on that horrible day and is asking for clemency in the form of a discharge upgrade so he may live his life. b. For many years, it has been almost impossible for him to have a decent job or receive proper medical care. He is in fear of his life because of medical issues that have worsened over the years from being enlisted. He is experiencing memory loss, been told that he stops breathing at night, and has multiple joint discomfort and stiffness throughout his entire body. He would like his request considered so that he can continue to make a positive contribution to society. 3. The applicant provides no 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. Having had prior Reserve service, the applicant enlisted in the Regular Army on 10 March 1981. On 7 May 1985, he was assigned to the 184th Ordnance Company, Germany. On 23 November 1986, he was arrested and placed in pre-trial confinement pending court-martial action. 3. On 23 March 1987, he was convicted by a general court-martial of one specification each of: * attempted murder by means of stabbing several times in the back with a knife * sodomy by force and without consent * wrongfully committing an indecent act with another by sticking a wrench into her vagina * adultery 4. He was sentenced to reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 30 years, and a dishonorable discharge. On 1 May 1987, only so much of the sentence was approved that provided for reduction to PV1, forfeiture of all pay and allowances, confinement for 25 years, and a dishonorable discharge. He was subsequently confined in the U.S. Disciplinary Barracks, Fort Leavenworth, KS. 5. On 9 July 1987, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 6. General Court-Martial Order Number 473, dated 11 December 1987, issued by the U.S. Disciplinary Barracks, Fort Leavenworth, stated the applicant's sentence had been affirmed and ordered the dishonorable discharge to be executed. It further stated the applicant's confinement would be served in the U.S. Disciplinary Barracks, Fort Leavenworth, or elsewhere as competent authority may direct. 7. He was discharged from active duty on 29 January 1988. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-10, as a result of a court-martial. He completed 5 years, 8 months, and 13 days of net active service this period and had 433 days (or 1 year, 2 months, and 7 days) of lost time due to being in confinement. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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. b. Paragraph 3-7b provides 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial in certain circumstances. d. Paragraph 3–11 states that a Soldier will be given punitive discharge (i.e. bad conduct discharge or dishonorable discharge) 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. 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 evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction, confinement, and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterized the misconduct for which he was convicted. 2. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 3. By law, any redress by the ABCMR 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) AR20150015228 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015228 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2