BOARD DATE: 24 August 2017 DOCKET NUMBER: AR20160001221 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: 24 August 2017 DOCKET NUMBER: AR20160001221 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AC82-04651, dated 8 September 1982. _____________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: 24 August 2017 DOCKET NUMBER: AR20160001221 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 reconsideration of his request for an upgrade of his bad conduct discharge. 2. The applicant states during his period of active duty service he was under a lot of stress because he was separated from his family and son. His father was also diagnosed with cancer. He was a boxer during his period of service and believes he sustained head trauma due to being hit on the head regularly, which may have impacted his decision making abilities. During his period of active duty service, he received pay during his period of incarceration although he was reduced to pay grade E-1. He completed his entire 3-year tour. He had no problems during two of his nearly 3 years of service. 3. The applicant provides a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC82-04651, dated 8 September 1982. 2. The applicant submits a new argument that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 28 January 1977 for 3 years. He held military occupational specialty 16H (Air Defense Artillery Operations and Intelligence Assistant). 4. On 19 March 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for leaving his appointed place of duty without authority. 5. He was advanced to pay grade E-3 on 6 November 1977. He served in Germany from 7 June 1977 to 14 November 1978. 6. On 26 June 1978, he accepted NJP under the provisions of Article 15, UCMJ, for willfully disobeying a lawful order from his superior noncommissioned officer. His punishment consisted of a suspended reduction to pay grade E-2 and restriction for 7 days. 7. On 14 July 1978, suspension of his reduction to pay grade E-2 was vacated and he was reduced accordingly. 8. On 22 August 1978, the applicant's company commander notified the applicant of his intent to separate him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Separations), paragraph 5-31 (Expeditious Discharge Program), with a General Discharge Certificate. He stated the reason for the proposed action was the applicant's deteriorating conduct and work performance both on and off duty. The recurring counseling sessions and numerous other unrecorded on-the-spot corrections appeared to have had little or no effect on his behavior. He advised the applicant of his rights. 9. On 22 August 1978, the applicant acknowledged receipt of the proposed discharge and voluntarily consented to this type of discharge. He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 10. On 15 November 1978, he was convicted by a general court-martial of one specification of committing assault upon another Soldier. The court sentenced him to a reduction to pay grade E-1, confinement at hard labor for 1 year, a forfeiture of $100.00 pay per month for 1 year, and a bad conduct discharge. 11. On 31 January 1979, the convening authority approved the sentence, and except for the bad conduct discharge, he ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 12. On 29 June 1979, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 13. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 559, dated 24 October 1979, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 14. On 21 November 1979, he was discharged in pay grade E-1. His service was characterized as under other than honorable conditions. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with completing 2 years and 29 days of active service and had 258 days of time lost (confinement). The separation authority is shown as paragraph 11-2, Army Regulation 635-200. 15. On 8 September 1982, the ABCMR denied his petition for an upgrade of his bad conduct discharge to an honorable discharge and a personal appearance before the Board. 16. The applicant provided no evidence to support his statement that he was a boxer during his period of active military service and that while a boxer he sustained head trauma. REFERENCES: 1. AR 635-200 sets forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 11 of the version in effect at the time stated an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence had been ordered duly executed. b. An honorable discharge is a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. A general discharge is a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. 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 change a court-martial 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 was convicted by a general court-martial and was sentenced to a bad conduct discharge. His sentence was affirmed and he was discharged accordingly on 21 November 1979. 2. His conviction and discharge were effected in accordance with applicable laws and regulations with due process with no violation of his rights. T 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. While the applicant contends he sustained head trauma while boxing for the U.S. Army, there is no evidence to support his contention. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001221 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001221 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2