IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016388 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: 21 March 2017 DOCKET NUMBER: AR20150016388 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: 21 March 2017 DOCKET NUMBER: AR20150016388 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 the characterization of his service from under other than honorable conditions to under honorable conditions (general). 2. The applicant states he was 21 years old, away from home for the first time and committed a youthful indiscretion. He is now 50 years old and respectfully requests to have the blemish on his record be removed. 3. The applicant provides a copy of his 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. The applicant enlisted in the Regular Army on 12 September 1983, at 18 years, 3 months, and 9 days of age. He completed one-station unit training at Fort Sill, OK, was awarded military occupational specialty 13F (Fire Support Specialist), and was subsequently assigned to FIST Team, 1st Battalion, 7th Infantry Regiment, in the Federal Republic of Germany. 3. His record contains Special Court-Martial Order 45, Headquarters, 3rd Infantry Division, dated 2 October 1985, which states, pursuant to Court-Martial Convening Order Number 2, this headquarters, dated 31 January 1985, the applicant was arraigned and tried at Aschaffenburg, Federal Republic of Germany. The applicant was arraigned on the following offenses and the following findings and other dispositions were reached: a. Charge 1 – Guilty, violating Article 86 of the Uniform Code of Military Justice (UCMJ) by on or about 24 April, without authority, absent himself from his unit and did remain absent until 2 May 1985. b. Charge 2 – violating Article 80 of the UCMJ by on or about 6 April 1985, by attempting to willfully and maliciously set fire to an inhabited dwelling, the property of the U.S. Government. The Military Judge, without prejudice to the government, dismissed charge 2 and its Specification and Charge 3 was renumbered as Charge 2 and its Specification. c. Charge 3 – Guilty, (Renumbered as Charge 2), violating Article 128 of the UCMJ by on or about 6 April 1985, by assaulting three service members by throwing at them a dangerous weapon, likely to produce death or grievous bodily harm, to wit: a Molotov cocktail fire bomb. d. The court sentenced him to forfeit $413.00 pay per month for six months, to be reduced to the grade of E-1, to be confined for 125 days, and a bad conduct discharge (BCD). The sentence was adjudged 25 July 1985. e. The findings of guilty as to the Charges of 1 and 3 (renumbered as Charge Number 2) and their Specifications were based upon the applicant’s pleas of guilty. 4. The military judge adjudged the following sentence on 25 July 1985: reduction to the grade of E-1, forfeiture of $413.00 per month for six months, confinement for 125 days, and a BCD. 5. On 2 October 1985, the convening authority approved the applicant?s sentence, and except for that part of the sentence extending to a BCD, ordered it executed. 6. On 13 December 1985, the U.S. Army Court of Military Review considered the entire record and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact. Accordingly, the findings of guilty and the sentence were affirmed. 7. Special Court-Martial Order Number 34, issued by Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, on 6 May 1986, shows the convening authority ordered so much of the sentence to reduction to the grade of E-1, forfeiture of $413.00 pay per month for six months, confinement for 125 days, and a BCD, adjudged on 25 July 1985, as promulgated in Special Court-Martial Order Number 45, dated 2 October 1985, has been finally affirmed. The provisions of Article 71(c) having been complied with, the sentence to a BCD was to be duly executed. That part of the sentence extending to confinement had been served. 8. His complete discharge packet is not available for review; however, his record contains a duly constituted DD Form 214 that shows he was discharged on 30 May 1986 after completing 2 years and 5 months of net active military service with 283 days of excess leave creditable for all purposes except pay and allowances. This form shows he was issued a separation code of "KFS," which means he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of court-martial, for the good of the service. It also shows his service was characterized as under other than honorable conditions. 9. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7b states 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. 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 change a court-martial 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 that the Board should upgrade his discharge because he was away from home for the first time and committed a youthful indiscretion. His records show that he was over 18 years of age at the time of his offences. There is no evidence to indicate he was any less mature than other Soldiers of the same age who successfully completed military service. 2. His record shows his trial by court-martial was warranted by the gravity of the offenses for which he was charged. The available evidence shows he was charged and found guilty by Special Court-Martial of the commission of offenses punishable under the UCMJ with a punitive discharge. The available evidence indicates he was to receive a BCD. 3. Interestingly, his DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of court-martial, for the good of the service. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant's record is void of additional facts and circumstances surrounding his discharge. Notwithstanding the foregoing, it is the general policy of the Board not to cause an applicant to be worse off than he or she would have been had the Board not acted in the case. 4. Regardless, based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. In accordance with Army Regulation 635-200, paragraph 3-7, his service did not meet the criteria for a general or an honorable characterization of service. /NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016388 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016388 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2