BOARD DATE: 21 September 2017 DOCKET NUMBER: AR20160004144 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: 21 September 2017 DOCKET NUMBER: AR20160004144 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: 21 September 2017 DOCKET NUMBER: AR20160004144 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 (BCD) to a general discharge (GD). 2. The applicant states: a. A Judge Advocate General's Corps officer told him his characterization of service would be upgraded 1 year after his discharge. b. At Fort Polk, LA, he lived on the third floor of a building where the female Soldiers lived. He was a cook serving in military occupational specialty (MOS) 94B. He brought left over food home and his room became the family room for all of the females in the building as they would always come to this room for something to eat, watch TV, or do their hair. c. Given that female Soldiers were always in his room, he was continually placed on extra duty. He repeatedly asked his company commander and executive officer to place him in the all-male barracks, which never happened; d. He fell in love with one of the females Soldiers and it was an immature relationship from hell. He was faced with a court-martial and was finally placed in the all-male barracks. His chain of command told him that it would not be in his interest to inform the judge he resided in an all-female barracks for 6 months. After the trial, he privately informed the judge of everything he dealt with and the judge told him things may have turned out differently, had his lawyer revealed that information during the trial. e. His lawyer said he would file the appropriate paperwork to upgrade his discharge which has not happened. f. He was the first in his family to join the Army and he was proud of it. He wanted to serve for life and he continues to convince younger members of his family to join the services. He let his family, country, and himself down; became a drunk; was in and out of jail; and suffered from major depression. He now has his life together and wants the BCD removed from his record before he leaves this world. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement. 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. On 27 June 1988, the applicant enlisted in the Regular Army. Upon completion of initial entry training he was awarded MOS 94B. 3. Section III (Service Training and Other Dates) of his DA Form 20 (Enlisted Qualification Record) confirms he was promoted through the ranks to specialist four/E-4 on 1 November 1989, and this was the highest rank he held. This document also shows the applicant’s reduction to private (PV1)/E-1 on 14 March 1990. 4. His record contains Special Court-Martial (SPCM) Order Number 6, issued by Headquarters, 5th Infantry Division (Mechanized), Fort Polk, LA, dated 8 March 1990. This order shows, pursuant to the applicant’s pleas, the SPCM found him guilty of the following charges by violating Articles of the Uniform Code of Military Justice (UCMJ) as indicated: * Charge I - Article 86, for failing to go to at the time prescribed, to his appointed place of duty on or about 20 December 1989 * Charge II - Article 91, for assaulting Sergeant (SGT) O.D., a noncommissioned officer, while in the performance of his duties * Charge III – dismissed * Charge IV - Article 128 (4 specifications) – * assault consummated by battery upon LDB (a female) on * 29 December 1989 * assault consummated by battery upon KDC (a female Soldier) on 18 December 1989 * unlawfully bite the cheek area of Private First Class (PFC) KDC’s face on 29 December 1989 * assault consummated by battery upon SGT RC, who then was, and was then known by the accused, to be a military police in the execution of his military police duties * Charge V - Article 134, for unlawfully entering barracks room #23, Module A, Building 1054, property of the U.S. Government and assigned to PFC KDC, with the intent to commit a criminal offense, to wit: assault, therein * Charge VI – (2 specifications) Article 134 – * being disorderly * breaking restriction 5. The resulting sentence imposed by the military judge was reduction to PV1/E-1, forfeiture of $466 pay for 3 months, confinement for 3 months, and a BCD. The SPCM Convening Authority approved the sentence except that portion extending to the BCD. 6. On 15 November 1990, SPCM Order Number 17, issued by Headquarters, 5th Infantry Division (Mechanized), Fort Polk, LA, directed that, Article 71c of the UCMJ having been complied with, the portion of the sentence providing for the BCD would be duly executed. On 3 April 1991, the applicant was discharged accordingly. 7. The DD Form 214 issued to the applicant shows he was discharged as a result of court-martial, in accordance with SPCM Order Number 17, dated 15 November 1990, with a BCD. He completed a total of 2 years, 6 months, and 27 days of active military service. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge or BCD. It stipulates, that a Soldier will be given a dishonorable discharge or a BCD pursuant only to an approved sentence of a general or SPCM, and that the appellate review must be completed and affirmed before the dishonorable discharge or BCD portion of the sentence is ordered duly executed. 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 GD 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and that a Soldier 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. 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 contends his BCD requires an upgrade to a GD. 2. The evidence of record confirms a SPCM sentenced the applicant to a BCD. After completion of the appellate process, his sentence was affirmed by the appropriate appellate court, and his BCD was ordered executed. The applicant’s conviction was effected in accordance with applicable law and regulations. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. 3. 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) AR20160004144 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004144 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2