BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160006867 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: 26 April 2018 DOCKET NUMBER: AR20160006867 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 26 April 2018 DOCKET NUMBER: AR20160006867 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 under other than honorable conditions discharge, along with reimbursement of forfeitures of pay and restoration of benefits. 2. The applicant states that he completed more than 3 years of active duty service when he was wrongfully court-martialed. a. He states that he was treated unfairly during the court-martial process, wrongfully convicted, and "railroaded" by being imprisoned at Fort Leavenworth Federal Prison. His defense attorney did not call him to testify during the trial and told him to sit quietly and listen. During the trial he had to listen to constant assaults on his character, false accusations, and false testimony. He adds that his defense attorney did not raise any objections. b. He also states the prosecutor relied on a Soldier (Private F___) who gave false testimony while under oath. After the court-martial, Private F___ was immediately promoted to specialist four (pay grade E-4). c. He adds that it has been nearly 40 years since he was discharged. He has been homeless and hungry on many occasions. He states he is innocent of the offenses for which he was court-martialed, yet he continues to be punished. He served his country and wants to be able to live, not just survive. 3. The applicant provides no additional documentary evidence in support of his application. 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20040009521 on 12 July 2005. 3. The applicant enlisted in the Regular Army on 29 July 1975 for a period of 3 years. Upon completion of training he was – * awarded military occupational specialty 11B (Infantryman) on 22 October 1975 * assigned to Company A, 1st Battalion, 11th Infantry, Fort Carson, CO, on 17 November 1975 * advanced to private/pay grade E-2 on 29 November 1975 4. He accepted nonjudicial punishment (NJP) on six occasions, as follows – * on 12 May 1976, for wrongfully possessing a controlled substance (marijuana) * on 6 July 1976, for – * failing to go at the time prescribed to his appointed place of duty * willfully disobeying a lawful order from his superior noncommissioned officer (NCO) * on 30 July 1976, for wrongfully possessing a controlled substance (marijuana) * on 14 October 1976, for failing to go at the time prescribed to his appointed place of duty * on 14 February 1977, for – * leaving his weapon unsecured and unattended * failing to go at the time prescribed to his appointed place of duty * being disrespectful in language toward his superior NCO * he was reduced to private/pay grade E-1 * on 14 June 1977, for leaving his post as a sentinel before being relieved of duty 5. A "Corrected Copy" of Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, Special Court-Martial (SPCM) Order Number 135, dated 4 October 1977, shows the applicant pled not guilty and was found guilty at a SPCM, on 17 August 1977, of violation of the Uniform Code of Military Justice, Article 128, by committing an assault upon an investigator, a person in execution of military police duties, by striking him on the head and body with his fists. a. The applicant was sentenced to confinement at hard labor for 3 months, forfeiture of $200 pay per month for 3 months, and a bad conduct discharge (BCD). b. On 4 October 1977, the SPCM convening authority approved the sentence. The applicant was ordered to be confined in the United States Disciplinary Barracks (USDB), Fort Leavenworth, KS, or elsewhere as competent authority may direct. The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review (CMR). 6. United States Army CMR, Memorandum Opinion, dated 22 March 1978, shows the CMR found the approved findings of guilty and the sentence pertaining to the applicant's case correct in law and fact and affirmed the findings of guilty and the sentence. 7. Headquarters, 7th Infantry Division, Fort Ord, CA, SPCM Number 73, dated 31 August 1978, shows that in the applicant's SPCM case the approved sentence of confinement at hard labor for 3 months, forfeiture of $200 pay per month for 3 months, and a BCD was affirmed pursuant to Article 66. The provisions of Article 71(c) having been complied with, the sentence to a BCD was ordered duly executed. 8. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions on 22 September 1978 and issued a BCD Certificate (DD Form 259A). He had completed 3 years and 9 days of net active service and he had 45 days of time lost (from 25 August 1977 through 8 November 1977). REFERENCES: 1. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 11 states a member will be given a dishonorable or a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered executed. b. Chapter 3, 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. c. Chapter 3, 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. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the 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. DISCUSSION: 1. The applicant contends that his under other than honorable conditions discharge should be upgraded with reimbursement of forfeitures of pay and restoration of benefits because he was treated unfairly during the court-martial process and wrongfully convicted. 2. The applicant's trial by court-martial was warranted by the gravity of the offense for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including review by the CMR. 3. The applicant's allegations regarding unfair treatment during the court-martial process and being wrongfully convicted by SPCM are matters that he and/or his counsel should have raised during the court-martial and/or review process. 4. 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. 5. The applicant's comments concerning eligibility for veterans' benefits should be directed to the Department of Veterans Affairs or his State's agency that is responsible for veterans' services. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006867 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006867 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2