BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160000848 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: AR20160000848 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: AR20160000848 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 the characterization of his service from under other than honorable conditions to honorable. 2. The applicant states he was a young father who thought doing what he was charged with would help him financially. It did not! He has lived with this for 40-plus years. He has become a good father, husband, and provider to his grandchildren and family. Now at retirement age, he would like to change his past. 3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty). 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 10 September 1970 at 17 years of age. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on: * 7 January 1971, for failing to go at the time prescribed to his appointed place of duty * 5 May 1972, for failing to obey a lawful order by marrying a Chinese National without submitting an application for approval * 6 June 1972, for unlawfully purchasing duty-free items from the Navy Exchange for or on behalf of a person or persons of the local economy, unlawfully reselling duty-free import items to a person or persons of the local economy, unlawfully reselling duty-free and controlled items without receiving approval of the Area Coordinator 4. Item 42 (Remarks) of his DA Form 20 (Enlisted Qualification Record) states, while not in an absent without leave status, the applicant was arrested by civilian authorities in Nogales, AZ, for possession and transportation of marijuana on 15 January 1973. He was sentenced to 12 months of probation. 5. His record contains Special Court-Martial Order Number 5, issued by Headquarters, Fort Huachuca, dated 12 February 1974, which shows a special court-martial convicted him of violating Article 121, UCMJ, by, on 1 October 1973, stealing a tape player of value of $99.95, the property of a fellow Soldier. He pled guilty and was found guilty of the charge. He was sentenced to confinement at hard labor for six months and to be discharged from the service with a bad conduct discharge. The sentence was adjudged on 15 January 1974 and approved on 12 February 1974. 6. Special Court-Martial Order Number 367, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, on 7 June 1974, shows the applicant was restored to duty pending completion of appellate review. 7. Special Court-Martial Order Number 294, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, Kansas, on 29 May 1975, shows so much of the sentence to a bad conduct discharge, confinement at hard labor for six months adjudged on 15 January 1974, as promulgated in Special Court-Martial Order Number 5, dated 12 February 1974, had been affirmed pursuant to Article 66. The provisions of Article 71(c) having been complied with, the sentence to a bad conduct discharge was to be duly executed. That part of the sentence extending to confinement had been served and the applicant was restored to duty pending completion of the appellate review on 7 June 1974, pursuant to Special Court-Martial Order Number 367, dated 7 June 1974. 8. His record contains a letter dated 22 May 1975 showing the U.S. Court of Military Appeals denied the petition of the applicant for a grant of review. The applicant was informed by his appellate defense counsel. In addition, it was further noted the Acting Judge Advocate General denied clemency in his case. 9. His DD Form 214 shows he was discharged on 13 June 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, as the result of court-martial, with an under other than honorable conditions characterization of service and the issuance of a Bad Conduct Discharge Certificate. He completed 4 years, 4 months and 5 days of total active service with 143 days lost time. 10. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 11-2, in effect at that time, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD and after such affirmed sentence had been duly executed. 2. Army Regulation 635-200, 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. 3. 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. 4. 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 evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 2. His contention that his misconduct was due, in part, to his financial situation at the time, is not supported by the available evidence. In any case, such a contention would have or should have been raised during the appellate review. 3. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000848 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000848 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2