BOARD DATE: 14 November 2017 DOCKET NUMBER: AR20160004599 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: 14 November 2017 DOCKET NUMBER: AR20160004599 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: 14 November 2017 DOCKET NUMBER: AR20160004599 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 earlier request for an upgrade of his under other than honorable conditions discharge to an honorable or general discharge. 2. The applicant states, in effect: * he would like the Board to look at his positive accomplishments during his military career and his post-service accomplishments * he received several letters of commendation * he received expert marksmanship qualification * his work with the homeless and court system is a result of teamwork and a positive attitude * he has matured and understands the value of working with others * he has received a Bachelor’s degree and is working on his Master’s degree * he is truly regretful of his actions during his service * he has not been in any trouble since he was discharged from the Army 3. The applicant provides: * self-authored statement * letter of appreciation * letters of commendation * college degrees and diplomas CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AC82-06620 on 17 November 1982 and AR1999019574 on 23 September 1999. 2. The applicant was born on 10 March 1956 and he enlisted in the Regular Army (RA) on 12 October 1976, at age 20. He completed the training requirements and he was awarded military occupational specialty (MOS) 94B (Food Service Specialist). 3. He was advanced to the rank of private first class (PFC)/E-3, effective 1 October 1977. This was the highest rank he achieved. 4. His record shows he accepted nonjudicial (NJP) punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: * 18 August 1978 for wrongfully possessing marijuana and his punishment included reduction in rank, a forfeiture of pay, and extra duty * 20 September 1978 for being absent without leave (AWOL) for 7 days and his punishment included reduction in rank and a forfeiture of pay 5. On 4 April 1979, he was convicted by a general court-martial of: * charge 1, violating Article 121 of the UCMJ, specification: stealing a television set of a value in excess of $100 * charge 2, violating Article 130 of the UCMJ, specification: unlawful entry with intent to commit a criminal offense of larceny * charge 3, violating Article 134 of the UCMJ, three specifications of: wrongful and unlawful endeavor to influence the testimony of witnesses before an investigating officer 6. On 27 April 1979, the convening authority approved a sentence to confinement at hard labor for 5 years, a forfeiture of all pay and allowances, and a dishonorable discharge. The record of trial was forwarded to The Judge Advocate General of the Army for appellate review. 7. On 1 October 1979, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 8. On 16 October 1979, the applicant petitioned the U.S. Court of Military Appeals for a grant of review. 9. Headquarters, Combined Arms Center, Fort Leavenworth, KS, General Court-Martial Order Number 43, dated 21 January 1980, shows after completion of all required post-trial and appellate reviews, the convening authority mitigated the applicant’s dishonorable discharge to a bad conduct discharge, remitted his sentence of hard labor in excess of 4 years, and the sentence, as modified was ordered duly executed 10. Order Number 73-11, issued by the United States Disciplinary Barracks, Fort Leavenworth, KS, shows the applicant was discharged from the RA with an under other than honorable conditions characterization of service effective 18 April 1980. 11. The applicant’s DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged on 18 April 1980 in the rank/grade of private/E-1 as a result of court-martial in accordance with Army Regulation 635-200 (Personnel Separations Enlisted Personnel), paragraph 11-2, with an under other than honorable conditions character of service. This form further shows he completed 2 years, 5 months, and 15 days of creditable active military service with lost time from 18 to 24 July 1978 and from 4 April 1979 to 18 April 1980. 12. On 17 November 1982 and 23 September 1999, the Board denied his petition for an upgrade of his discharge. REFERENCES: 1. 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. 2. Army Regulation 635-200, paragraph 11-2, in effect, at the time, provided that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of the appellate review and after such affirmed sentence has been ordered duly executed. 3. Army Regulation 635-200, 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. 4. Army Regulation 635-200, 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. DISCUSSION: 1. The applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. He provides no evidence that he was denied due process. 2. The applicant was 20 years of age at the time of his enlistment and 22 years of age at the time of his offenses. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations. Additionally, there is no evidence in the available records showing his acts of indiscipline were the result of his age. 3. The applicant’s letters of commendation and post-service conduct and achievements are noted. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004599 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004599 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2