IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20160008220 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 IN THE CASE OF: BOARD DATE: 14 June 2018 DOCKET NUMBER: AR20160008220 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 reconsideration of his earlier request for an upgrade of his bad conduct discharge. 2. The applicant states he would like his discharge upgraded because he has not been in trouble in 25 years. He was young and he had a drinking problem at the time. He did not know how to get help. He has stopped drinking and has stayed out of trouble. He adds in a personal statement: a. He was not aware that he could appeal the ruling against him. He is referring to the court-martial against him that occurred at Fort Stewart, GA, in 1980. He would like to know why he was court-martialed. He was young and did not know what was going on. He did not know how to defend himself at the time. He and his friends were talking and then someone settled it by boxing. He and the other person were hitting each other. b. After so many years, he does not think it was a fair decision or trial. He raised several questions such as: If the other person was in fact struck with a weapon, why wasn't that person hurt? What happened to the people who were there at the time? Why didn't anyone come forward? This should tell the Board that something was wrong. They were horse playing and at best, he should have received an Article 15 instead of going to trial. c. The incident should have been investigated before it went to trial. A knife was never found. They were going by what was said. Anything could have been written at the time to keep him from becoming a sergeant. He really thinks the case was an injustice to him. He asks for consideration to have this action reviewed and removed. He served and should be able to draw some sort of benefit. The past 10 to 15 years have been a struggle, as he did not know which way to turn. He has made a complete turnaround: he works at odd jobs, he joined a church, and has stopped drinking (more than 5 years). As a young person, he made mistakes. He is trying to live a normal life and asks the Board to reconsider his request to upgrade his bad conduct discharge. 3. The applicant provides a statement of support. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140004311 on 25 November 2014. 2. The applicant provides a new argument and a statement of support that were not previously considered. This warrants consideration by the Board. 3. The applicant was born in October 1957 and enlisted in the Regular Army at 18 years and 6 months of age on 18 February 1976. He held military occupational specialty 36K (Field Wireman). 4. He served in Germany from 14 July 1976 to 21 February 1978. He was assigned to the 69th Transportation Company. 5. On 18 December 1977, at 20 years of age, the applicant was convicted by a general court-martial of the charge and is specification of committing an assault on U__ He__, with intent to commit murder, by stabbing her in the back with a knife and did thereby intentionally inflict grievous bodily harm upon her, to wit: a deep cut. The court sentenced him to reduction to E-1, confinement at hard labor of 15 months, and forfeiture of $200 pay per month for 15 months. 6. On 15 March 1978, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 11 months, forfeiture of $200 pay per month for 11 months, and reduction to E-1. 7. On 4 August 1978, the unexecuted portion of the sentence as pertained to confinement at hard labor for 11 months was suspended until 5 December 1978 at which time, unless sooner vacated the suspended portion of the sentence would be remitted without further action. The appellate review was pending. 8. On 27 September 1978, the unexecuted portion of the sentence as pertained to forfeiture of $200 pay per month for 11 months was suspended until 5 December 1978 at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action. The appellate review was pending. 9. On 12 December 1979, at 22 years of age, the applicant was convicted by a special court-martial of committing an assault upon another Soldier by unlawfully striking him on the head with his hand and by striking at him with a dangerous weapon, to wit: a knife. The court sentenced him to confinement at hard labor of 6 months, forfeiture of $200 pay per month for 6 months, and a bad conduct discharge. 10. On 15 February 1980, the convening authority approved the sentence and, except for the bad conduct discharge, ordered it executed. The Record of Trial was forwarded to the Judge Advocate General of the Army for appellate review. 11. On 29 April 1980, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 12. It appears the U.S. Military Court of Appeals reviewed his case; however, the final disposition of that review was not in his records. 13. Special Court-Martial Order Number 119, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, on 10 December 1980, stated the sentence had been affirmed and would be dully executed. The portion of the sentence pertaining to confinement had been served. 14. The applicant was discharged from active duty on 24 December 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of a court- martial with a bad conduct discharge. His DD Form 214 shows he completed 3 years, 7 months, and 15 days of net active service with 139 days of lost time. 15. He provides a statement of support from an individual who states that she has known the applicant since 2007. He was struggling with an alcohol problem. She has worked with him for a couple years on his hygiene and health and getting back on track. He has stopped drinking and has not been in any trouble since 2007. He works odd jobs, goes to church, and does not get into any fights or arguments. He reads books and helps some of the neighbors with keeping their yards clean. He is trying to live life as normally as possible. REFERENCES: 1. AR 635-200 prescribes the policies and procedures pertaining to separation of enlisted personnel. a. Chapter 11, in effect at the time, prescribe the policies and procedures for separating members with a dishonorable or a bad conduct discharge. It stipulates that a Soldier would be given 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 duly executed. b. 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. 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. d. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. e. Paragraph 3-11 states a member will be given a bad conduct discharge 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. 2. AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. DISCUSSION: 1. The applicant was convicted by a special court-martial for committing an assault upon another Soldier by unlawfully striking him on the head with his hand and by striking at him with a knife. His chain of command determined his trial by a special court-martial was warranted by the gravity of the offense charged. He received a bad conduct discharge pursuant to an approved sentence of a special court-martial. 2. The appellate review was completed and the affirmed sentence was 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. 3. The applicant provides evidence showing he has struggled with an alcohol problem but has stopped drinking and has made efforts to live a life that is as normal as possible. He states he has not been in any trouble in 25 years. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this 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. BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20140004311 on 25 November 2014. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160008220 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008220 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2