IN THE CASE OF: BOARD DATE: 21 March 2017 DOCKET NUMBER: AR20150016735 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: AR20150016735 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: AR20150016735 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, in effect, an upgrade of his bad conduct discharge (BCD). 2. The applicant makes no statement. 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. The applicant enlisted in the Regular Army on 12 July 1984. He served overseas in Korea from 20 July 1987 to 20 July 1988 and Saudi Arabia from 11 August 1991 to 19 February 1992. 3. He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on four occasions for the following offenses: * missing the movement of the 18th Ordnance Explosive Ordnance Disposal (EOD) Support Mission on or about 8 August 1995 * making and uttering worthless checks on various dates between 8 and 16 August 1995 (14 specifications) * failing to go at the time prescribed to his appointed place of duty on or about 31 August 1995 and 15 September 1995 * disobeying a lawful order from a superior noncommissioned officer on or about 8 August 1995 * wrongfully appropriating one 1995 Ford Taurus, of a value of more than $100.00, the property of the U.S. Government, on or about 8 August 1995 4. On 17 October 1995, his unit commander notified him of his intent to initiate action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for a pattern of misconduct. The unit commander recommended the applicant's separation because he missed movement, disobeyed a lawful order, wrongfully appropriated a government vehicle, failed to repair, and wrote bad checks totaling approximately $1,000.00. 5. After being advised of his rights by counsel, the separation authority directed the applicant's discharge from the service under the provisions of Army Regulation 635-200, paragraph  14-12b by reason of misconduct – pattern of misconduct with issuance of a General Discharge Certificate. 6. Prior to his date of discharge, the applicant went absent without leave (AWOL) and committed other violations of the UCMJ. General Court-Martial Order Number 13, issued by Headquarters, XVIII Airborne Corps and Fort Bragg on 18 January 1996 shows: a. On 6 December 1995, the applicant was convicted by a general court-martial of the following offenses: * two specifications of being absent from his unit from 4 to 7 November 1995 and from 9 to 11 November 1995 * two specifications of disobeying a superior noncommissioned officer * three specifications of wrongfully appropriation of military property between 1 June and 1 July 1995 and larceny of military property between1 July and 1 August 1995 and 15 October and 20 October 1995 * breaking restriction on 4 November 1995 b. The court sentenced him to reduction to the lowest enlisted grade, forfeiture of all pay, confinement for 7 months, and a BCD. c. On 18 January 1996, the convening authority approved the sentence and, except for that part of the sentence extending to a BCD, ordered the sentence to be executed. 7. On 19 March 1996, the U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence. 8. General Court-Martial Order Number 82, issued by Headquarters, U.S. Army Armor Center and Fort Knox, on 21 August 1996 ordered the applicant's BCD executed. 9. On 10 December 1996, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, by reason of court-martial in the rank/pay grade of private/E-1. He completed 12 years and 2 days net active service. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had lost time from 4 to 6 November 1995, 9 to 10 November 1995, and 8 December 1995 to 29 April 1996. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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 3-11 states that a Soldier will be given a BCD 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 applicant's service record indicates he received four Article 15s for missing movement, making and uttering worthless checks, failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from a superior noncommissioned officer, and wrongfully appropriating government property. His service record shows that his unit commander initiated separation action under the provisions of Army Regulation 635-200, chapter 14 for a pattern of misconduct based on these offenses. It appears that the administrative separation action was suspended when the applicant departed AWOL shortly following the separation authority's approval. 2. The applicant's service record shows he received a conviction by a general court-martial for two specifications of being absent from his unit, two specifications of disobeying a superior noncommissioned officer, three specifications of wrongfully appropriating military property, and breaking restriction. 3. The applicant's trial by court-martial was warranted by the gravity of the offense charged and his conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. 4. The evidence of record does not indicate the actions taken in this case were in error or unjust. During his administrative separation processing and then throughout his court-martial proceedings, to include his appeal, there is no evidence his rights were violated or that he lacked legal representation. 5. 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) AR20150016735 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016735 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2