IN THE CASE OF: BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150016176 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: 6 April 2017 DOCKET NUMBER: AR20150016176 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: 6 April 2017 DOCKET NUMBER: AR20150016176 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 to honorable. 2. The applicant states: a.  He did not realize what he was doing because a friend told him he had bought the motorcycle he was accused of stealing. b.  He had honorable service from 11 June 1985 to 28 November 1988 when he reenlisted. c.  He had orders for reassignment to Fort Campbell, KY, when he discovered what had happened. d.  He regrets not being able to use his training to help his brothers in combat. 3. The applicant provides Congressional correspondence. 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 11 June 1985 for a period of 4 years. 3. On 29 November 1988, he reenlisted for a period of 3 years. 4. On an unknown date between on or about December 1989 and 12 April 1990, court-martial charges were preferred against him. His DD Form 458 (Charge Sheet) is not available for review. 5. On 13 April 1989 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he freely made his request for discharge and that if he received a discharge under other than honorable conditions: * he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Department of Veterans Affairs * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions * he understood there was no automatic upgrade or review by any government agency of a less than honorable discharge and he must apply to the Army Discharge Review Board or ABCMR if he desired a review of his discharge 6. On 18 April 1989, he provided a statement in his own behalf wherein he stated: a. He served honorably and proudly as an airborne infantryman for the past 3 years. He never dreamed he would have to request discharge from the Army under other than honorable conditions. b.  He was having some serious financial problems during December 1988. Earlier that year, he participated in a voluntary car repossession and agreed to pay $1,500.00 by 1 November 1988 or face further damage to his family's credit rating. c.  He was desperately looking for a way out of his financial situation. He had already received help from his parents and he was too ashamed to ask again. He knew there were two motorcycles parked on Fort Richardson and he started thinking about stealing one of them to get the money he needed. d.  On 21 December 1988 after unit training, he walked past one of the motorcycles and noticed it was not locked up. e.  On 23 December 1988, he was drinking at a friend's house, who was also a Soldier. He told his friend about the motorcycle and how he thought it would get him out of the financial bind he was in. They decided to steal it. f.  He had the keys to his neighbor's pickup truck because she had asked him to drive it and check it out while she was away. Sometime before 2100, he and his friend drove onto post and stole the motorcycle. After loading the motorcycle in the pickup truck, they drove it to a storage shed he had rented. He received both his and his wife's permanent fund check on 24 or 27 December when mail started getting delivered again and the checks took care of their financial crisis. g.  He didn't know what to do with the motorcycle at this point and he just left it in the storage shed. In January 1989, he learned he was pending a permanent change of station to Fort Campbell, KY, and he decided to just take the motorcycle with him. On the evening of 31 January 1989, he moved the motorcycle from the storage shed to his apartment because his household goods were being picked up on 1 February 1989. The next day, U.S. Army Criminal Investigation Division officials questioned him about the motorcycle and he openly told them everything. 7. On 24 April 1989, his commander recommended disapproval of his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. On the same date, the separation authority disapproved his request for discharge under the provisions of Army Regulation 635-200, chapter 10. 8. On 27 April 1989, he pled and he was found guilty by a special court-martial of stealing a motorcycle on or about 23 December 1988. He was sentenced to reduction in rank/grade from specialist/E-4 to private/E-1, forfeiture of two-thirds pay per month for 6 months, confinement for 6 months, and separation with a bad conduct discharge. The court-martial order is not available for review. 9. On 27 April 1989, his duty status changed from present for duty to confined by military authorities. 10. His DA Form 3822-R (Report of Mental Status Evaluation), dated 7 July 1989, shows he underwent a mental status evaluation for discharge because of misconduct. The evaluating physician assistant determined he had the mental capacity to understand and participate in proceedings. 11. Headquarters, 6th Infantry Division (Light) and U.S. Army Garrison Alaska, Fort Richardson, AK, Special Court-Martial Order Number 9, dated 13 July 1989, shows the special court-martial sentence was approved and ordered the execution of his sentence, except for that part of the sentence extending to a bad conduct discharge. 12. On 22 August 1989, his commander submitted a recommendation for remittance of the unexecuted portion of his sentence to confinement effective 11 September 1989 contingent upon his continued good behavior and compliance with U.S. Army Correctional Activity rules and regulations. 13. U.S. Army Correctional Activity Special Court-Martial Order Number 108, dated 11 September 1989, shows the unexecuted portion of his approved special court-martial sentence to confinement was remitted. 14. On 11 September 1989, his duty status changed from confined by military authorities to present for duty. 15. On 30 October 1989, the U.S. Army Court of Military Review affirmed his findings of guilty and affirmed only so much of his sentence as provided for reduction to the grade of private/E-1, forfeiture of $466.00 pay per month for 6 months, confinement for 6 months, and a bad conduct discharge. 16. On 30 October 1989, the U.S. Army Court of Military Review corrected Headquarters, 6th Infantry Division (Light) and U.S. Army Garrison Alaska, Special Court-Martial Order Number 9, dated 13 July 1989, to show the amount of monthly pay forfeitures as "two-thirds" and deleted the words "hard labor." 17. U.S. Army Correctional Brigade, Fort Riley, KS, Special Court-Martial Order Number 8, dated 1 February 1990, ordered execution of his bad conduct discharge. 18. On 8 February 1990, he was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * he completed 4 years, 3 months, and 11 days of net active service * he had honorable active service from 11 June 1985 to 28 November 1988 * his service characterized as bad conduct and his narrative reason for separation was as a result of court-martial REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a.  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.  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.  A Soldier will be given a bad conduct 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. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends he did not realize what he was doing because a friend told him he had purchased the motorcycle and he had reassignment orders to Fort Campbell when he discovered what had happened. 2. The evidence of record shows the applicant submitted a self-authored statement at the time of the incident in which he admitted he was desperate due to family financial problems and he stole the motorcycle with the help of his friend. 3. The special court-martial proceedings were conducted in accordance with law and regulations. His conviction and sentence were properly reviewed and affirmed, and the sentence was ordered duly executed. 4. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. 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) AR20150016176 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016176 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2