BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20160001893 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: 13 June 2017 DOCKET NUMBER: AR20160001893 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: 13 June 2017 DOCKET NUMBER: AR20160001893 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 to a general discharge under honorable conditions. 2. The applicant states he was told his discharge would be upgraded 6 months after separation. He also states he believes the record is unjust because this all stems from his captain and first sergeant accusing him of lying about being a high school graduate in order to get into the Army. But he did not lie; his recruiter got into trouble for making phony diplomas. This is why his commander focused on him. In any case, he pled guilty to the charges and the judge threw out others that he thought were ridiculous. He still had to go through the court-martial process. After it was over, he was told he would be placed on excess leave for 6 months and after that he could come back in and start over in the "M.I.C. Program" with a different unit. 3. The applicant provides no additional evidence. 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 16 August 1985. He held military occupational specialty 11B (Infantryman). He was assigned to Fort Riley, KS. 3. On 21 April 1986, he was arraigned at Headquarters, 1st Infantry Division, Fort Riley, KS, pled guilty, and was tried by a special court-martial for: * Charge I – four specifications of larceny by false pretense * Charge II – one specification of being absent without leave (AWOL) and one specification of failure to report 4. The court found him guilty as charged based on his pleas and sentenced him to confinement for 6 months and a bad conduct discharge. 5. On 25 June 1986, the convening authority approved a lesser sentence by suspending that part of the sentence that extended to confinement in excess of 4 months and, except for the bad conduct discharge, ordered the sentence executed. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 6. The applicant was confined at Fort Riley from 21 April to 11 July 1986. Upon release from confinement, he was placed on indefinite excess leave effective 11 July 1986, pending appellate review. 7. On 21 August 1986, he was apprehended by civil authorities for armed robbery and placed in the Marion County Jail, Lebanon, KY. He had his first hearing on 25 August 1986. 8. On 26 August 1986, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 9. Special Court-Martial Orders Number 238, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, on 18 December 1986, show that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed. 10. The applicant was discharged on 30 December 1986. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, with a bad conduct discharge. He completed 1 year, 1 month, and 23 days of creditable active military service with lost time on 11 February 1986 and from 21 April to 10 July 1986. He was in an excess leave status from 11 July to 30 December 1986. 12. His DD Form 214 also shows he was awarded or authorized the: * Army Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Grenade Bar 13. There is no indication he petitioned the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 provides for the separation of enlisted personnel: a. 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. b. 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. c. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11 states a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The applicant was convicted by a special court-martial for multiple specifications of larceny, as well as being AWOL and failing to report. None of the charges or specifications were related to him not being a high school graduate. Furthermore, his chain of command determined his trial by a special court-martial was warranted by the gravity of the offense charged. 2. He received a bad conduct discharge pursuant to an approved sentence of a special court-martial. The appellate review was completed and the affirmed sentence was 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. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this 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. 4. The Army does not currently have nor did it ever have a policy wherein a characterization of service is/was upgraded due to the passage of time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001893 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001893 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2