BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160002099 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: 7 September 2017 DOCKET NUMBER: AR20160002099 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: 7 September 2017 DOCKET NUMBER: AR20160002099 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, in effect, an upgrade of his service characterization from under other than honorable conditions to honorable. 2. The applicant states: a. He was advised to request this Board upgrade his discharge. He has attempted on several occasions to get this rectified. However, upon receipt of his DD Form 214, he observed the character of service remained the same. b. At the time of his discharge, Army lawyers told him his record would automatically be upgraded after 6 months of good behavior. This never happened and he has written several letters to no avail. c. He began this quest in January of 1974 and he respectfully requests the Board consider his request to upgrade his discharge. He received correspondence stating his discharge date had been corrected, but they failed to update the character of service as he requested. d. His DD Form 214 states he is a U.S. citizen and he was told he would become a U.S. citizen after 24 hours of swearing to the flag and defending the country. He has been working and paying into social security since 1967. His DD Form 214 states he is a U.S. citizen, but he has been denied social security. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 215 (Correction to DD Form 214). 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 15 December 1969. 3. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on: * 22 January 1970, for disobeying a lawful order from a commissioned officer, on or about 22 January 1970 * 14 April 1970, for violating a lawful regulation, on or about 14 April 1970 * 28 July 1970, for being absent without leave (AWOL) from on or about 12 July through 20 July 1970 * 3 December 1970, for disobeying a lawful order from a commissioned officer, on or about 1 December 1970 * 28 January 1971, for disobeying a lawful order from a noncommissioned officer (NCO), on or about 28 January 1971 4. The applicant was found guilty by a summary court-martial on 11 February 1971, of being absent from his unit without authority, on or about 3 February 1971. 5. The applicant accepted NJP, under the provisions of Article 15 of the UCMJ, on 3 March 1971, for operating a military vehicle in a reckless manner and causing a traffic accident, on or about 12 February 1971. 6. The applicant was convicted by a special court-martial on 21 June 1971, of: * two specifications of communicating a threat to an NCO * communicating to other Soldiers a threat to injure an NCO * unlawfully striking an NCO in the face with his fist 7. The sentence consisted of forfeiture of $65 pay for 5 months, confinement at hard labor for 4 months, and to be discharged from the service with a bad conduct discharge. The sentence was approved on 17 July 1971, except for the bad conduct discharge, and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 8. The U.S. Army Court of Military Review affirmed the findings and the sentence on 24 January 1972. 9. Special Court-Martial Order Number 18, issued by Headquarters, III Corps, Fort Hood, TX, on 18 April 1972, ordered that, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the sentence would be duly executed. 10. The applicant was discharged on 13 July 1972, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a special court-martial. His DD Form 214 confirms he was issued a DD Form 259A (Bad Conduct Discharge Certificate). 11. The Army Discharge Review Board denied the applicant's request for an upgrade of his bad conduct discharge on 13 November 1973. 12. The applicant provides a DD Form 215, dated 21 March 2013, which amended his DD Form 214 to show his correct social security number. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The regulation in effect at the time of the applicant's discharge provided in paragraph 11-2 that 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. 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. 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. 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 applicant's request for an upgraded of his bad conduct discharge was carefully considered. 2. The evidence shows the applicant was found guilty by a special court-martial of two specifications of communicating a threat to an NCO, communicating to other Soldiers a threat to injure an NCO, and unlawfully striking an NCO in the face with his fist. Therefore, the trial by court-martial was warranted by the gravity of the offense charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which he was convicted. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002099 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002099 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2