IN THE CASE OF: BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20160008410 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 IN THE CASE OF: BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20160008410 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. IN THE CASE OF: BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20160008410 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 at the time he was using drugs and was not in the right frame of mind. He is now off drugs and his BCD is interfering with employment opportunities. Other than his drug use, he claims he was a good Soldier who never received an Article 15. 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 29 November 1993. 3. His record contains General Court-Martial Order Number 32, issued by Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, dated 28 May 1996, which shows a general court-martial convicted him of violating Article 86, Uniform Code of Military Justice (UCMJ), by being absent without leave for the period 29 January to 1 February 1996; of violating Article 112a, UCMJ, by wrongfully using cocaine between 19 and 22 December 1995; and of violating Article 121, UCMJ, by between 13 and 27 January 1996, larceny of personal property of value of over $100; wrongful appropriation of an automobile of a value of more than $100 on 29 January 1996; larceny of military property of a value of more than $100 on 8 January 1996; larceny of AAFES property of a value of more than $100 on 21 December 1995; and willfully disobeying a superior commissioned officer on 27 January 1996. He was sentenced to reduction to the rank/grade of private (PVT)/E-1, forfeiture of all pay and allowances, to be confined for 18 months and to be discharged from the service with a BCD. The sentence was adjudged on 10 April 1996. The sentence was approved the same day and, except for the part of the sentence pertaining to forfeiture of Basic Allowance for Quarters (BAQ) and Variable Housing Allowance (VHA), was suspended for 6 months with the provision that the allowances would be paid to the applicant's dependent son. 4. His record contains General Court-Martial Order Number 52, issued by United States Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS, dated 5 March 1999, which shows the sentence to a BCD, reduction to the rank/grade of PVT/E-1, forfeiture of all pay and allowances (forfeiture of BAQ and VHA suspended for 6 months with the provision the allowances be paid to the applicant's dependent son), and confinement for 18 months, adjudged on 10 April 1996, as promulgated in General Court-Martial Order Number 32, dated 28 May 1996, was affirmed. The applicant was credited with 60 days confinement toward the sentence of confinement. Article 71(c) having been complied with, the BCD was to be duly executed. 5. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 2 April 1999 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 3-11, as the result of court-martial, with a BCD. He completed 3 years, 11 months and 1 day of net active service with lost time for the period 30 January to 28 November 1996 and with lost time after normal expiration term of service from 29 November 1996 to 10 September 1997. 6. 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 11-3, 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 general court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 2. His contention that at the time he was not in his right mind due to using drugs is noted; however, such a contention could 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. 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. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment 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) AR20160008410 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008410 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2