BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20150018378 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: 27 April 2017 DOCKET NUMBER: AR20150018378 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: 27 April 2017 DOCKET NUMBER: AR20150018378 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 an honorable discharge. 2. The applicant states, in effect, the U.S. Army incorrectly charged him with being absent without leave (AWOL) for more days than he was actually AWOL. Following trial by court-martial his lawyer appealed his case and about half of the charges and specifications were overturned. However, he had already been discharged before the appeal was finalized. He adds that he requests this correction of his records in order to be eligible for veterans' benefits. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and extracts from Westlaw (20 pages) pertaining to the appeal of his case. 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 19 August 1974 for a period of 3 years. Upon completion of training he was awarded military occupational specialty 31M (Multichannel Communications Equipment Operator. 3. The applicant accepted nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), as follows: * on 9 November 1974, for possession of a controlled substance (marijuana) and for selling a controlled substance (marijuana) * on 25 March 1975, for being AWOL from 3 March 1975 through 16 March 1975 4. The applicant was assigned overseas to serve in Germany on 11 April 1975. 5. He accepted NJP for violation of the UCMJ, as follows: * on 20 November 1975, for failing to report to his appointed place of duty at the time prescribed (on 5 November and 10 November 1975) * on 14 January 1976, for being AWOL from 12 January to 14 January 1976 * on 20 February 1976, for being AWOL from 10 February to 20 February 1976 6. Headquarters, 3rd Armored Division, General Court-Martial (GCM) Order Number 56, dated 10 August 1977, promulgated the applicant's trial by GCM. a. He pled not guilty to and was found guilty of violation of the UCMJ: * Article 86 (Charge), of being AWOL from 5 November 1976 to 16 November 1976 * Article 86 (Additional Charge I), Specification 1, of being AWOL from 17 December 1976 to 29 December 1976 * Article 86 (Additional Charge I), Specification 2, of being AWOL from 17 January 1977 to 16 February 1977 * Article 128 (Additional Charge II), of assault of an individual by striking him on the head, face, and neck with a bottle used in a manner likely to produce grievous bodily harm b. On 1 July 1977, he was sentenced to be discharged from service with a BCD, to be confined at hard labor for 18 months, to forfeit all pay and allowances, and to be reduced to the grade of private E-1. c. On 10 August 1977, the GCM Convening Authority (GCMCA) approved the sentence. He ordered the applicant be confined in the United States Disciplinary Barracks (USDB), Fort Leavenworth, KS, or elsewhere as competent authority may direct. He also directed the record of trial be forwarded to The Judge Advocate General (TJAG) of the Army for review by a Court of Military Review. 7. U.S. Army Court of Military Review (CMR), Memorandum Opinion, dated 22 March 1978, shows the CMR found the approved findings of guilty and the sentence pertaining to the applicant's case correct in law and fact and affirmed the findings of guilty and the sentence. 8. On 5 April 1978, the applicant acknowledged receipt of the decision of the CMR in his case and that he had been advised of his right to petition the Court of Military Appeals for a grant of review with respect to any matter of law within 30 days. 9. On 28 June 1978, the Deputy Clerk of Court, United States Court of Military Appeals (CMA), notified the Commandant, USDB, Fort Leavenworth, KS, that the applicant's petition for review of his case was granted. 10. On 4 March 1980, he accepted NJP for violation of the UCMJ for being AWOL from 16 January 1980 to 23 January 1980. 11. Headquarters, U.S. Army Armor Center, Fort Knox, KY, GCM Order Number 30, dated 12 July 1983, promulgated the applicant's trial by GCM. a. He pled not guilty to and was found guilty of violation of the UCMJ: * Article 86 (Charge), of being AWOL from 5 November 1976 to 16 November 1976 * Article 86 (Additional Charge I), Specification 1, of being AWOL from 17 December 1976 to 29 December 1976 * Article 86 (Additional Charge I), Specification 2, of being AWOL from 17 January 1977 to 16 February 1977 * Article 128 (Additional Charge II), of assault of an individual by striking him on the head, face, and neck with a bottle used in a manner likely to produce grievous bodily harm b. It shows he was sentenced (on 1 July 1977) to be discharged from service with a BCD, to be confined at hard labor for 18 months, to forfeit all pay and allowances, and to be reduced to the grade of private E-1. c. On 12 July 1983, the new GCMCA noted that the findings of guilty of Additional Charge II and its specification were dismissed by the Commander, 3rd Armored Division, on 13 April 1981 and the action taken by the Commander, 3rd Armored Division, was set aside by the CMA pursuant to Article 67, UCMJ. Action under Article 61, UCMJ, having been completed, the GCMCA approved only so much of the sentence as provided for a BCD, confinement at hard labor for nine months, forfeiture of all pay and allowances, and reduction to the grade of private E-1. That portion of the sentence pertaining to confinement having been served, he ordered the applicant be retained within the jurisdiction of the command pending completion of appellate review. He also directed the record of trial be forwarded to TJAG of the Army for review by a CMR. 12. U.S. Army CMR, Memorandum Opinion, dated 22 December 1983, shows the CMR noted, on 17 November 1980, the CMA reversed the CMR's opinion of 22 March 1978. The findings as to Additional Charge II (aggravated assault), and the sentence, were set aside. The case was returned for rehearing, or for dismissal of Additional Charge II and reassessment of sentence (United States v. D____ [Applicant], 10 Military Justice (MJ) 36 (CMA 1980)). a. On remand, the convening authority dismissed Charge II and approved so much of the sentence as provided for a BCD, confinement at hard labor for nine months, forfeiture of all pay and allowances, and reduction to the grade of private E-1. On 16 December 1981, the CMR affirmed the findings and sentence as approved (United States v. D____, 12 MJ 768 (CMR 1981)). b. On 16 May 1983, the CMA reversed the CMR's opinion. The action of the convening authority was set aside and the case returned for new review and action (United States v. D____, 15 MJ 351 (CMA 1983)). c. On 12 July 1983, action was taken by a different convening authority after a new review. He approved so much of the sentence as provided for a BCD, confinement at hard labor for nine months, forfeiture of all pay and allowances, and reduction to the grade of private E-1. d. The case was (then) before the CMR for review pursuant to Article 66, UCMJ; Title 10, U.S. Code, section 866 (1976). The CMR found no errors had been assigned by the appellant or on his behalf. The appropriateness of a BCD was challenged, however, and the appellant asked that he not be stigmatized by such a discharge. e. The CMR reviewed all the pleadings and the record of trial again in the light of the approved sentence. The CMR concluded that the sentence as approved was appropriate. The findings of guilty and the sentence were affirmed. 13. Headquarters, U.S. Army Armor Center, Fort Knox, KY, GCM Order Number 21, dated 8 June 1984, confirmed the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the portion of the sentence pertaining to confinement having been served, the BCD was ordered duly executed. 14. The applicant's DD Form 214 shows he entered active duty this period on 19 August 1974 and he was separated on 6 July 1984 with a BCD under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), chapter 3, section IV, as a result of court-martial (other). He had completed 8 years, 4 months, and 3 days of net active service this period. He had 563 days of time lost (AWOL and confinement); 1,246 days in an excess leave status; and he was retained in service 1,948 days for convenience of the government. 15. In support of his application the applicant provides the following documents. a. Extract from Westlaw (13 pages) pertaining to United States CMA, United States v. D____, 1980, Number 35827; CMR Number 436321/G, 17 November 1980. It shows, in pertinent part, by majority decision the CMA reversed the decision of the CMR as to the offense of aggravated assault and the sentence. The findings thereon were set aside. The record of trial was returned to TJAG of the Army for submission to a convening authority, which could dismiss the aggravated assault charge and reassess the sentence based on the remaining findings of guilty, or order a rehearing on the aggravated assault charge and the sentence. b. Extract from Westlaw (3 pages) pertaining to United States CMR, United States v. D____, 1981, CM 436321, 16 December 1981. It shows, in pertinent part, by unanimous decision the CMR found that the staff judge advocate's advice (by means of a "decision paper") to the convening authority was not a review required by Article 61 or 65(b), UCMJ, nor was it akin to or supplemental to such a review. It was not the initial written opinion on a record of trial, but instead was advice concerning the alternative courses of action prescribed by the CMA as a result of appellate review. The CMR found the error to be without merit. The findings of guilty and the sentence were affirmed. c. Extract from Westlaw (4 pages) pertaining to United States CMA, United States v. D____, 1983, Number 35827; CM 436321, 16 May 1983. It shows, in pertinent part, by unanimous decision the CMA reversed the CMR decision. The CMA found discrepancies in the staff judge advocate's "decision paper." (For example, instead of being AWOL for a total of 131 days, applicant was actually found to be AWOL for a total of 53 days.) None of the periods of AWOL for which the applicant was convicted exceeded 30 days. Thus, the offenses were not sufficient in-and-of themselves to warrant imposition of a BCD. Only application of the third "escalator" clause in paragraph 127c, Section B, Manual for Courts-Martial provided the convening authority with a basis for approving a BCD. However, the convening authority was not advised of this point. The CMA directed the record of trial be returned to TJAG of the Army for submission to a convening authority for reassessment of the sentence based upon correct advice of a staff judge advocate. The CMA noted that the maximum sustainable sentence is that approved in the action, dated 13 April 1981. REFERENCES: 1. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 (Character of Service/Description of Service) prescribes the policies and procedures for separating members with a BCD. It stipulates that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Chapter 3, 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. c. Chapter 3, 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. 2. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 contends that his BCD should be upgraded because he was incorrectly charged with more days than he was actually AWOL, he appealed his case, and about half of the charges and specifications were overturned on appeal, but he had already been discharged before the appeal was finalized. 2. The evidence of record shows: a. On 1 July 1977, the applicant was tried and convicted at a GCM of the Charge (AWOL from 5 November 1975 to 16 November); Additional Charge, Specification I (AWOL from 17 December 1976 to 29 December 1976; Additional Charge, Specification II (AWOL from 17 January 1977 to 16 February 1977; vice to 7 May 1977, as originally charged); and Additional Charge II (Aggravated Assault). The GCMCA approved the findings and sentence on 10 August 1977. b. On 22 March 1978, the CMR affirmed the findings of guilty and the sentence. c. On 17 November 1980, the CMA reversed the CMR's opinion of 22 March 1978. The findings as to Additional Charge II (Aggravated Assault), and the sentence, were set aside. The case was returned for rehearing, or for dismissal of Additional Charge II and reassessment of sentence. d. On 13 April 1981, the Commander, 3rd Armored Division dismissed the findings of guilty of Additional Charge II and its specification. e. On 16 May 1983, the CMA directed the record of trial be returned to TJAG of the Army for submission to a convening authority for reassessment of the sentence based upon correct advice of a staff judge advocate. The CMA noted the maximum sustainable sentence is that approved in the action, dated 13 April 1981. f. On 12 July 1983, a different GCMCA confirmed that the action taken by the Commander, 3rd Armored Division, was set aside by the CMA. The GCMCA approved only so much of the sentence as provided for a BCD, confinement at hard labor for nine months, forfeiture of all pay and allowances, and reduction to the grade of private E-1. g. On 22 December 1983, the CMR reviewed all the pleadings and the record of trial again in light of the approved sentence. The CMR concluded that the sentence as approved was appropriate. The findings of guilty and the sentence were affirmed. h. The applicant was discharged on 6 July1984. 3. The evidence of record supports the applicant's contention that he was originally charged with a longer period (i.e., more days) of AWOL. However, during the course of his court-martial, that considered his pleadings of not guilty, the specification of the period of AWOL for which he was tried and convicted was reduced to a lesser period of AWOL. Additionally, the matter pertaining to discrepancies in the staff judge advocate's "decision paper" (i.e., of being AWOL for a total of 131 days, when the applicant was actually found to be AWOL for a total of 53 days) was reviewed and acted upon by the CMA. 4. The evidence of record shows the Additional Charge II (Aggravated Assault) was dismissed by the Commander, 3rd Armored Division and set aside. However, the charge of AWOL and additional charge I (with two specifications of AWOL) remained, and the applicant was found guilty of those charges and specifications. A new GCMCA approved the findings and sentence to a BCD. 5. The evidence of record does not support the applicant's contention that about half of the charges and specifications were overturned on appeal and that he had already been discharged before the appeal was finalized. 6. The applicant's trial by GCM was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the appellate review. 7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 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. 8 . During the period of service under review: a. the applicant received NJP on six occasions for various acts of misconduct in violation of the UCMJ, including possession of a controlled substance (marijuana), selling a controlled substance (marijuana), and numerous periods of unauthorized absences; b. he was tried and convicted by GCM of three specifications of AWOL (i.e., 53 days); and c. during the period of service under review he had a total of 83 days AWOL. d. His service did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit either an honorable discharge or a general, under honorable conditions discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018378 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018378 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2