BOARD DATE: 8 March 2018 DOCKET NUMBER: AR20160005749 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. 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: 8 March 2018 DOCKET NUMBER: AR20160005749 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :GJP :CMM :TWH DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 March 2018 DOCKET NUMBER: AR20160005749 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 did not have fair representation at the time of his special court-martial hearing. The details of the offense appear to be one-sided and there does not appear to be any details in the findings concerning why the incidents occurred. He would appreciate any and all efforts in upgrading his BCD to an honorable discharge. Considering the punishment imposed and the time served without incident, reconsideration of his final discharge should be granted. 3. The applicant provides no additional evidence in support of his request. 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 basis to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 5 July 1978. After completing initial entry training, he was awarded military occupational specialty 19E (Armor Crewman). 3. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for: * failing to go at the prescribed time to his appointed place of duty on or about 26 December 1978 * willfully disobeying a lawful order on or about 3 May 1979 * absenting himself from his place of duty and remaining absent from on or about 15 May 1979 through on or about 21 May 1979 4. Before a special court-martial that convened at Fort Hood, TX on 25 January 1980, the applicant was found guilty of violating Article 128 of the UCMJ; specifically, he was convicted of: * assault and battery on or about 27 October 1979 * assault consummated by battery on or about 5 November 1979 5. The applicant was sentenced to reduction to the lowest enlisted grade, forfeiture of $299 pay per month for four months, confinement at hard labor for four months, and separation with a bad conduct discharge. The convening authority approved the sentence on 3 March 1980 and, with the exception of that portion related to separation by BCD, ordered the sentence duly executed. The record of trial was forwarded to The Judge Advocate General of the Army for review by the Court of Military Review. 6. The Court of Military Review affirmed the approved guilty findings and sentence. 7. Special Court-Martial Order Number 259, issued by Headquarters, United States Disciplinary Barracks, Fort Leavenworth, KS, on 23 September 1980, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered that the BCD be duly executed. 8. The applicant was discharged pursuant to his sentence on 3 October 1980. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 11-2, with a bad conduct characterization of service. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. Paragraph 11-2 of the regulation in effect at the time provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must have been 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 he did not have fair representation at the time of his special court-martial and that, considering the punishment imposed and the time served without incident, reconsideration of his final discharge should be granted. 2. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. He has not provided evidence corroborating his claim that he did not have fair representation at his special court-martial. 3. The evidence of record shows the applicant was discharged with a bad conduct discharge on 3 October 1980 pursuant to an approved sentence by a special court-martial, which was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations. 4. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. 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 (cont) AR20160005749 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005749 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2