BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160007350 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: 5 June 2018 DOCKET NUMBER: AR20160007350 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: 5 June 2018 DOCKET NUMBER: AR20160007350 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 his bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect, that he was wrongfully charged for what happened. He loves his country and would serve again at peace or at war. 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 bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 23 November 1976. 3. The applicant accepted non-judicial punishment on 26 March 1979, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 11 March through on or about 14 March 1979. 4. General Court-Martial Order Number 21, issued by Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, KY on 26 September 1979, shows the applicant was found guilty of: a. Charge 1 – violating Article 125 of the UCMJ; specifically, for committing sodomy with private M.W. on or about 5 June 1979. b. Charge 2 – violating Article 134 of the UCMJ; specifically, for communicating a threat to private M.W. on or about 5 June 1979, by saying, "if you report what happened to anyone it might happen again," or words to that effect. 5. The court sentenced him to be discharged from the service with a BCD, to be confined at hard labor for 18 months, and forfeiture of $200 pay per month for 18 months. The sentence was adjudged on 2 August 1979. 6. The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial on 5 November 1979. 7. General Court-Martial Order Number 65, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS on 29 January 1980, shows the sentence as promulgated in General Court-Martial Order Number 21, was affirmed and ordered executed. 8. The applicant was discharged on 17 April 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11-2, as a result of court-martial, with his service characterized as under other than honorable conditions. He was issued a DD Form 259A (BCD Certificate). 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. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 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 requests an upgrade of his under other than honorable conditions discharge. He contends he was wrongfully charged for what happened. 2. The applicant received a BCD pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time. The conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 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 (cont) AR20160007350 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007350 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2