BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160003643 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: 16 January 2018 DOCKET NUMBER: AR20160003643 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: 16 January 2018 DOCKET NUMBER: AR20160003643 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, clemency and an upgrade of his dishonorable discharge. He also requests that his record of incarceration be expunged from his official records. 2. The applicant states, in effect: * he was allowed to reenlist for 6 years after his court-martial conviction * he served honorably after his court-martial conviction, he was allowed to carry a weapon and bear arms during this period of service to defend his country * he believes he deserves the right to bear arms now * the Department of Alcohol, Tobacco, and Firearms seized his weapon because of his dishonorable discharge and the period of incarceration that occurred more than 30 years ago * he is a 100 percent service connected disabled veteran * he understands he should not have been allowed to reenlist because of his dishonorable discharge; not even with a waiver * however, he did reenlist and he was a young kid at the time * he was not perfect, he worked hard, and he was an outstanding Soldier * he was an acting corporal for the division sergeant major, Soldier of the year/Soldier of month runner up, and he received countless awards * he believes his service (to his country) warrants better than he received 3. The applicant provides: * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * Criminal History Record from the City of Detroit, Department of Police * certificate from the National Rifle Association of America, for completion of the basic pistol course * Army Commendation Medal Certificates * certificates for completion of training * certificates of achievement * letters of commendation * letters of appreciation * front page of noncommissioned officer evaluation reports * two DA Form 1059s (Service School Academic Evaluation Report) * DA Form 384 (Equipment Operator’s Qualification Record) * Corinthian Schools, Incorporated, transcripts * Service School Academic Evaluation Reports 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 was born 28 July 1962. He enlisted in the Regular Army (RA) for a period of 3 years on 7 October 1982. He completed the training requirements and he was award military occupational specialty 31K (Tactical Wire Operator Specialist). 3. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 8 April 1985, for disobeying a lawful order from a senior noncommissioned officer, being disrespectful in language toward a senior noncommissioned officer, wrongfully possessing and consuming alcohol in the field, and being drunk and disorderly. The punishment imposed was reduction to the rank of private first class (PFC)/E-3, forfeiture of $350 pay for 2 months (1 month suspended), and 45 days of extra duty and restriction. 4. On 16 September 1985, he pled guilty and was found guilty by a general court-martial of one specification of committing an assault upon A____ O. C____, by striking her with a beer bottle in the face and head with a means likely to produce grievous bodily harm. 5. He was sentenced to be discharged from the service with a dishonorable discharge, 2 years in confinement, forfeiture of all pay and allowances, and reduction to pay grade of E-1. Only so much of the sentence as provided for a dishonorable discharge, 18 months of confinement, a forfeiture of all pay and allowances, and reduction to pay grade E-1 was approved and, except for that part of the sentence extending to a dishonorable discharge, was ordered executed. 6. On 16 January 1986, the U.S. Army Court of Criminal Military Review affirmed the approved findings of guilty and the sentence. 7. United States Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 396, dated 5 June 1986, shows the applicant’s sentence was affirmed, Article 71(c) had been complied with, and the dishonorable discharge was ordered executed. 8. Orders 209-2, issued by United States Army Correctional Activity, Fort Riley, KS, dated 29 October 1986, show the applicant was discharged from the RA effective 7 November 1986. 9. The DD Form 214 he was issued shows, on 7 November 1986, he was discharged under the provisions of chapter 3, Army Regulation (AR) 635-200, as a result of court-martial, with a dishonorable discharge in the rank of private (PV1)/E-1. He completed 2 years, 11 months, and 8 days of net active service with lost time for the periods 16 September to 6 October 1985 and 7 October 1985 to 7 November 1986. This DD Form 214 also shows a reenlistment code of RE-4 (non-waivable/ineligible for enlistment). 10. On 8 November 1986, for unknown reasons, the applicant was allowed to enlist in the RA. His enlistment documents are not available for review. 11. He received NJP under the provisions of Article 15, UCMJ, on 5 August 1992, for unlawfully striking Mrs. S____ M. H____ twice on the face with a closed fist and in a sworn statement, he wrongfully and unlawfully subscribed under lawful oath a false statement in substance, which he did not believe to be true. The punishment imposed was reduction to specialist (SPC)/E-4. 12. The applicant appealed his NJP and indicated he would submit additional matters. 13. On 3 September 1992, his appeal was reviewed and denied. 14. He was honorably discharged on 30 November 1992 and transferred to the United States Army Reserve, in accordance with (IAW) AR 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-8, by reason of the fiscal year 1992 enlisted voluntary transition program. His DD Form 214 further shows in: * item 12a (Date Entered Active Duty this Period): 8 November 1986 * item 12b (Separation Date This Period): 30 November 1992 * item 12c (Net Active Service This Period): 6 years, 0 months, 23 days * item 12d (Total Prior Active Service): 2 years, 11 months, 8 days * item 12h (Effective Date of Pay Grade): 27 August 1992 * item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized): Army Commendation Medal (2nd Award), Army Achievement Medal (2nd Award), Army Good Conduct Medal, National Defense Service Medal, Southwest Asia Service Medal with one bronze service star, Noncommissioned Officer Professional Development Ribbon (Numeral 2), Army Service Ribbon, Overseas Service Ribbon (Numeral 2), Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Pistol Bar (.45), and the Army Service Lapel Button 15. In the processing of this case Army Review Boards Agency Senior Medical Advisor provided an advisory opinion. The Senior Medical Advisor noted that: a. A limited review of VA (Veteran's Administration) records through the JLV (Joint Legacy Viewer) with 40 VA listed problems including hypothyroidism, end stage renal disease with history of renal transplant, chronic hepatitis C, sarcoidosis, hypertension, type II diabetes mellitus, diabetic retinopathy, and others. The applicant is currently VA service-connected at 100 percent overall. b. The available record did not reasonably support post-traumatic stress disorder or another boardable behavioral health (BH) condition(s) existed at the time of the applicant's military service, and there were no BH conditions present at the time of misconduct. BH conditions were not mitigating for the misconduct. c. The applicant met medical retention standards for granulomatous dermatitis, sarcoidosis, right shoulder pain, physical, medical and/or behavioral conditions IAW Chapter 3, AR 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. d. The applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army (in 1986 and/or 1992). If additional service treatment records become available in the near future from the VA or elsewhere, the documents will be reviewed and this medical advisory will be amended if appropriate. 16. The applicant was provided a copy of the advisory opinion in order to give him an opportunity to submit (within 30 days) a response or rebuttal. He did not respond to the advisory opinion. REFERENCES: 1. AR 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for ABCMR. Paragraph 2-9 states 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. 2. AR 635-200 provides for the following characterizations of service: a. Paragraph 3-7a states 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 states 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. 3. 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 Army Board for Correction of Military Records (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 regulation governing the Board's operation requires the discharge process must be presumed to have been in accordance with applicable law and regulation unless the applicant can provide evidence to overcome that presumption. 2. The applicant's trial by a general court-martial was warranted by the gravity of the offense charged. His plea of guilty, conviction, confinement, and discharge were effected in accordance with applicable laws and regulations. 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. No basis for clemency has been established in this case. 4. The applicant contends his youth played a role in his misconduct; however, he was nearly 22 years of age at the time of his misconduct. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligations. 5. The medical advisor in this case confirmed the applicant is currently VA service-connected at 100 percent overall. The advisor also concluded that, based on the information available for review, the applicant did not have mitigating medical or behavioral health condition for the offenses which led to his dishonorable discharge in 1986. 6. The applicant's honorable service subsequent to his dishonorable discharge is noted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003643 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003643 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2