BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150017776 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: 9 May 2017 DOCKET NUMBER: AR20150017776 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: 9 May 2017 DOCKET NUMBER: AR20150017776 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 his dishonorable discharge (DD) be upgraded. 2. He states, in effect, that he had been drinking at the Noncommissioned Officer’s Club when a Soldier came to tell him there was a problem in the barracks. He went there and saw a person breaking up [a fight]. He left and went to bed. He contends that he should not have been court-martialed because he does not even know what happened. He believes that he served his country honorably attaining the rank of specialist four (SP4)/E-4. He has worked for the past 30 years with the school district and he is married with two children. 3. He provides his Dishonorable Discharge Certificate, a personal property memorandum, and a memorandum barring his entry from any U.S. Installation under the control of the Commander in Chief of U. S. Army Europe. 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. He enlisted in the Regular Army on 17 March 1982. After completing his initial training, he was assigned to Fort Stewart, GA, and subsequently to Mainz, Germany. 3. The highest rank held was SP4. His record documents no acts of valor or significant achievement. 4. On 22 August 1984, a General Court-Martial (GCM) found the applicant guilty of aggravated assault upon a person with a means likely to produce grievous bodily harm, possession of an unknown amount of marijuana, distribution of .37 grams of marijuana, and possession of a switchblade knife. The resulting sentence was a reduction to the rank of private/E-1, a DD, a forfeiture of all pay and allowances, and confinement at hard labor for 2 years. 5. GCM Order Number 45, Headquarters, Fort Leavenworth, Kansas, dated 11 October 1984, shows the convening authority approved the sentence and ordered it executed, except for the DD. 6. On 4 April 1985, U. S. Army Correctional Activity, Fort Riley, KS, GCM Order Number 140, directed that, Article 71c having been complied with, that the applicant’s sentence be duly executed. 7. On 17 January 1986, the applicant was discharged by reason of court-martial with a DD under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations). The DD Form 214 he was issued shows he completed a total of 2 years, and 3 months, of creditable active military service and with time lost from 25 June 1984 to 16 January 1986 due to being in confinement. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations - Enlisted), 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. 2. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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 requests that his DD be upgraded because he never committed a crime and was erroneously court-martialed. His post-service achievements are noted. 2. The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge. By law, any redress by this Board of the finality of a court-martial conviction under the Uniform Code of Military Justice 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) AR20150017776 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017776 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2