BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20160010088 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: 6 February 2018 DOCKET NUMBER: AR20160010088 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: 6 February 2018 DOCKET NUMBER: AR20160010088 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 an under honorable conditions (general) discharge. 2. The applicant states he believes his discharge was unjust because: * he was discharged after he had served 30 days in the military brigade * he was supposed to be sent back to his unit and reevaluated after 30 days * he was sent back to his unit for 14 days – after 7 days he was served with court-martial orders and on the 14th day he was court-martialed * he was sentenced to 6 months in a Federal correction facility and given a BCD 3. The applicant provides no additional evidence. 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. The applicant enlisted in the Regular Army on 1 July 1980 at over 18 years of age. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on: * 12 January 1981, for using disrespectful language toward his superior noncommissioned officer * 9 April 1981, for behaving with disrespect toward his superior commissioned officer * 19 May 1981, for willfully disobeying a lawful command from his superior commissioned officer * 10 June 1981, for breaking restriction; twice failing to go to at the time prescribed to his appointed place of duty; and willfully disobeying a lawful order 4. On 8 July 1981, the applicant was barred from reenlistment. 5. His record contains Special Court-Martial Order Number 7, issued by Headquarters, Fort Carson, Fort Carson, CO, dated 24 September 1981, which shows a special court-martial convicted him of violating Article 89, UCMJ, by, on 10 June 1981, behaving with disrespect toward his superior commissioned officer; of violating Article 91, UCMJ, by, on 10 June 1981, striking a superior noncommissioned officer, twice disobeying a lawful order, and twice being disrespectful in language toward a superior noncommissioned officer; and of violating Article 134, UCMJ, by, on 10 June 1981, by communicating a threat to a superior noncommissioned officer. He pled guilty and was found guilty of all charges. He was sentenced to forfeit $334.00 pay per month for 6 months, to be confined at hard labor for 6 months and to be discharged from the service with a BCD. The sentence was adjudged on 4 August 1981. The sentence was approved on 24 September 1981. 5. On 16 November 1981, the U.S. Army Court of Military Review affirmed a sentence of a BCD, confinement at hard labor for 5 months, and forfeiture of $334.00 pay per month for 5 months. 6. Special Court-Martial Order Number 174, issued by United States Disciplinary Barracks, Fort Leavenworth, Kansas, on 31 March 1982, shows so much of the sentence to a BCD, confinement at hard labor for 5 months adjudged on 4 August 1981, as promulgated in Special Court-Martial Order Number 7, dated 24 September 1981, was affirmed pursuant to Article 66. The provisions of Article 71(c) having been complied with, the sentence to a BCD was to be duly executed. That part of the sentence pertaining to confinement had been served. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 7 May 1982 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 11-2, as the result of court-martial, with the issuance of a BCD Certificate. He completed 1 year, 6 months and 2 days of total active service with lost time for the period 4 August to 8 December 1981. 8. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 11-2, in effect at that time, stated that an enlisted person would be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial imposing a BCD and after such affirmed sentence had been duly executed. 2. 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. 3. 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 evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged. 2. His contention that he was supposed to be sent back to his unit and reevaluated after 30 days is not corroborated by the available evidence. In any case, such a contention would have or should have been raised during the appellate review. 3. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected. Conviction and discharge were effected in accordance with applicable law and regulations. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010088 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010088 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2