BOARD DATE: 9 January 2018 DOCKET NUMBER: AR20160005060 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: 9 January 2018 DOCKET NUMBER: AR20160005060 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: 9 January 2018 DOCKET NUMBER: AR20160005060 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). 2. The applicant states he was young and dumb, but was proud to serve his country. 3. The applicant does not provide any supporting documentation. 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 28 July 1982 the applicant enlisted in the Regular Army (RA). 3. On 10 September 1984, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing and using six grams, more or less, of marijuana in the hashish form. 4. On 17 December 1984 the applicant accepted NJP under Article 15, UCMJ, for stealing two safety helmets, a value of about $14.00, and one lantern, a value of about $120.00. In addition, he destroyed the lantern, the value of about $120.00. 5. General Court-Martial (GCM) Order Number 37, issued by Headquarters VII Corps, dated 19 August 1985, shows on 4 June 1985, the applicant pled not guilty to the charges of destruction of government property, robbery, and communicating a threat. He was found not guilty of the charges; however, he was found guilty of the substituted charge of assault consummated by battery. 6. The applicant was sentenced to a reduction to private/pay grade E-1, a forfeiture of all pay and allowances, confinement for a period of 3 months, and the issuance of a BCD. The sentence was approved and except for the part of the sentence extending to a BCD was executed. 7. A DA Form 4187 (Personnel Action) shows the applicant was confined on 7 June 1985, as a result of the court-martial decision. 8. A second DA Form 4187 shows the applicant was released from confinement on 16 August 1985, upon the completion of his sentence. 9. GCM Order Number 38, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, dated 1 April 1986, shows the applicant’s sentence of a BCD, forfeiture of all pay and allowances, confinement for 3 months, and a reduction to the lowest enlisted grade was affirmed. The portion of the sentence extending to confinement had been served, and the BCD was ordered to be executed. 10. On 12 May 1986, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3, by reason of court-martial with a BCD. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows during this period of service he completed 3 years, 7 months, and 7 days of net active service. He also had lost time from 7 June to 15 August 1985. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-11 (BCD,) states a Soldier will be given a BCD 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. 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. 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 ABCMR acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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 that his discharge should be upgraded because at the time he was young and immature, but was proud to serve his country. 2. The evidence of record shows the applicant received two NJPs, was convicted by a GCM, and he received a BCD. A trial by a GCM was warranted by the serious nature of the offense(s) for which the applicant was charged and convicted. The sentence is commensurate with the misconduct for which the applicant 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) AR20160005060 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005060 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2