IN THE CASE OF: BOARD DATE: 13 April 2017 DOCKET NUMBER: AR20150017148 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: 13 April 2017 DOCKET NUMBER: AR20150017148 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: 13 April 2017 DOCKET NUMBER: AR20150017148 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 honorable. 2. He states he is feeling remorseful and guilty about the possibility of his past actions causing pain and discomfort to his fellow Army brothers. He explains he had a verbal disagreement with a group of Soldiers during his off-duty time. He does not recall who threw the first punch, but he entered into a fistfight with at least two of these Soldiers. He was taken to the base stockade. He was later released after his Congressman reviewed his case and had the decision reversed. After his release, he was discharged from the Army in September 1975. He adds he thought he would receive an honorable discharge since he served honorably. He offers he was promoted to E-2 after basic training, promoted to E-3 when he graduated from advance individual training, and believes he was promoted to E-4 before the fight. 3. He provides his DD Form 214 (Report of Separation from Active Duty) and a self-authored statement. 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 27 September 1972. He served in military occupational specialty 31M (Radio Relay and Carrier Attendant). The highest rank/grade he attained was private first class (PFC)/E-3. 3. On 5 April 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his place of duty from on or about 0630 hours to on or about 1200 hours on 20 March 1973. 4. On 4 December 1973, he was convicted by a general court-martial for stealing from a Soldier by force and against his will, cash money of a value of two dollars ($2.00) and assaulting the Soldier by striking him in the face with his hand on 30 August 1973. He was sentenced to a forfeiture of all pay and allowances, confinement at hard labor for 3 years, and a BCD. 5. On 28 February 1974, only so much of the sentence as provided for a forfeiture of all pay and allowances, confinement at hard labor for 2 years, and a BCD was approved. 6. General Court-Martial Order Number 45, dated 15 January 1975, stated that so much of the sentence to confinement at hard labor in excess of 20 months by action of the Secretary of the Army, dated 29 July 1974, and pursuant to remission of the unexecuted portion of the sentence to confinement at hard labor by action of the Secretary of the Army, dated 13 January 1975, was restored to duty pending completion of appellate review. That portion of the sentence pertaining to forfeitures shall not apply to pay and allowance becoming due to the applicant, during the period commencing on the date of the order and terminating on the date of the order directing execution of the sentence. 7. On 14 February 1975, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to obey a lawful order from a first sergeant on or about 13 February 1975. 8. On 28 February 1975, the U.S. Army Court of Military Review affirmed the general court-martial findings of guilty and the sentence. 9. General Court-Martial Order Number 28, dated 8 July 1975, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 10. His DD Form 214 shows he was discharged on 10 September 1975 under the provisions of chapter 11, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial, with an under other than honorable conditions discharge. He was issued a DD Form 259A (Bad Conduct Discharge Certificate). He completed 2 years, 6 months, and 27 days of creditable active service with 137 days of lost time from 31 August 1973 through 14 January 1975. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. b. 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. c. 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 as 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 argues that he served honorably and thought he would receive an honorable discharge. 2. The evidence of record shows he was convicted by a general court-martial that was warranted by the gravity of the offenses charged at the time. 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. 3. He was sentenced to a BCD pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 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. Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017148 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017148 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2