BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160000578 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: 11 May 2017 DOCKET NUMBER: AR20160000578 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: 11 May 2017 DOCKET NUMBER: AR20160000578 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 under other than honorable conditions discharge to a general discharge. 2. The applicant states, in effect, he made a mistake as a young 20 year old that has embarrassed him and his family for 38 years and he would like to remove the stain from his past. He states that he has lived a clean and clear life since his poor choice as a young man. Subsequent to his discharge he was employed by Church's Fried Chicken where he was selected as the manager of the year and he was promoted to area supervisor. He also states he has been diagnosed with Parkinson's disease. He adds that he would like to be remembered for the positive things in his life, not the negative aspects, and an upgrade of his discharge would be a gift to a man who regrets his actions. 3. The applicant provides copies of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), a plaque, and letters. 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 7 July 1976 for a period of 3 years. At the time he was 19 years of age. He was: * awarded military occupational specialty 95B (Military Police) * assigned to the 52nd Military Police Company, Fort Sam Houston, TX, from 17 December 1976 to 6 January 1978 * assigned overseas to Germany on 7 February 1978 * promoted to specialist four/pay grade E-4 on 1 April 1978 3. Headquarters, VII Corps (Germany), General Court-Martial (GCM) Order Number 79, dated 7 August 1979, shows the applicant was convicted at a GCM, on 9 May 1979, of violation of the Uniform Code of Military Justice: * Article 92, Charge I, of violating a general regulation, between May and August 1978, by selling rationed cigarettes of an approximate value of $720 to a German national * Article 121, Charge II – * specification 1, of stealing from the Kelley Barracks Post Exchange, on 21 January 1979, electronic equipment of a total value of about $1,965 * specification 2, of stealing from the Kelley Barracks Commissary, between May and August 1978, cigarettes of a value of about $720 * Article 130, Charge III – * specification 1, of unlawfully entering the Kelley Barracks Post Exchange (Building 3312) with the intent to commit a criminal offense; of larceny * specification 2, of unlawfully entering the Kelley Barracks Commissary facility (Building 3316) with the intent to commit a criminal offense of larceny 4. The applicant was sentenced to confinement at hard labor for 30 months, reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and a bad conduct discharge (BCD). 5. On 7 August 1979, the GCM convening authority approved only so much of the sentence that provided for confinement at hard labor for 30 months, reduction to the lowest enlisted grade, a forfeiture of $279 pay for 30 months, and a BCD. The applicant was ordered to be confined in the United States Disciplinary Barracks (USDB), Fort Leavenworth, KS, or elsewhere as competent authority may direct. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review (CMR). 6. A United States Army CMR, Memorandum Opinion, dated 29 October 1979, shows counsel for the applicant declined to file pleadings. 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. 7. On 14 November 1979, 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 United States Court of Military Appeals (CMA) for a grant of review with respect to any matter of law within 30 days. He indicated that his petition was placed in the United States mails (or was filed with the Court) on 14 November 1979. (A copy of the CMA decision is not filed in his available military personnel record.) 8. Headquarters, USDB, Fort Leavenworth, KS, GCM Number 66, dated 29 January 1980, shows in the applicant’s GCM case, the approved sentence was confinement at hard labor for 30 months, reduction to the lowest enlisted grade, a forfeiture of $279 pay for 30 months, and a BCD was affirmed pursuant to Article 66. The provisions of Article 71(c) having been complied with, the sentence to a BCD was ordered duly executed. 9. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions, on 30 April 1980. He completed 2 years, 10 months, and 2 days of net active service this period. 10. In support of his application the applicant provides the following documents: a. A copy of a Church's Fried Chicken plaque that shows the applicant was recognized as "Manager of the Year" in 1986 for Area 123. b. A letter, undated, from David D. M____ (his former employer from 2003 to 2006) that shows the applicant was a reliable "go to guy" employee who helped him grow his company into one of the largest satellite installers and retailers in Oklahoma. c. A letter from Buddy M____, Morris Electronics, dated 27 August 2010, that show the applicant was employed full time as a lead satellite technician for more than 12 years. It also shows the applicant managed a small group of employees and provided high quality service to customers. Mr. M____ highly recommends the applicant for employment. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 states a member will be given a dishonorable or a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered executed. b. 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 under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge because he made a mistake as a young man; however, he has lived a positive and responsible life since he was discharged from the U.S. Army. 2. The applicant's trial by court-martial 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 applicant's appeal. 3. 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. 4. The applicant's comments and the supporting evidence he provided regarding his post-service achievements and conduct were considered. However, good post-service conduct alone is not normally a basis for upgrading a 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) AR20160000578 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000578 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2