IN THE CASE OF:  	  

		BOARD DATE:  25 June 2015	  

		DOCKET NUMBER:  AR20140018712 


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 to a general discharge. 

2.  The applicant states, in effect: 

	a.  One day after work, he and several other Soldiers in his platoon were at their barracks drinking alcohol.  It was a diverse group of individuals and a few hours into relaxing a fight broke out between two individuals.  He and several others moved to see what was happening and who was fighting.  The individuals fighting were semi-encircled by the crowd and he was located almost at the front. Unbeknown to him, one of the platoon sergeants was making his way towards the center of the semi-circle and the platoon sergeant came up behind him and grabbed him.  He instinctively reacted by hip-tossing him to the ground.  He later came to believe the platoon sergeant meant him no harm, but due to the training he (the applicant) received from the Army he simply reacted to being grabbed without thinking, which is what the intense hand-to-hand combat training had prepared him for.  He freely admits that he had been drinking earlier and this impaired his judgment.  He believes that he would have handled the situation much differently had he not been drinking.

	b.  He does not recall there being any problems between him and the platoon sergeant/noncommissioned officer (NCO) before this incident and the fact that he was a specialist (SPC)/corporal (CPL)/E-4 shows that he was respectful of the rules and policies of the Army.  Until that one incident, he had nothing in his military/personal record or derogatory action.  Later that same afternoon, he was placed in pre-trail confinement awaiting trial by special court-martial for assaulting another NCO.  He waited 6 months before he was court-martialed, reduced to the rank of private (PV1)/E-1, and given a bad conduct discharge.

	c.  He deeply regrets his actions.  He has lived a lifetime wishing he could change the events that took place that day between him and the sergeant, the drinking, rushing with the others to see the fight, and not making his way towards the two Soldiers and breaking things up.  

	d.  The effects of that day in September 1979 has long haunted him and still impact his life and livelihood today.  The separation code he was assigned and the character of service has caused him to face many obstacles in his life.  He is now 56 years old and he has lived a life of righteousness.  He is active in his community and church, and he has held about 10 jobs since departing the Army (including the Fire Department, Naval Hospital Beaufort, Maintenance Supervisor on Harbor Island, and he is a sitting member on his church Usher Board).

	e.  He would like the Board to look upon his request with the awareness that he was a young Soldier, age 21, and "though some may consider that age to full knowing," but he still had a lot of maturing to do and he feels that he still do in some aspects of his life as many others do.  He wishes to have his character of service upgraded to general under honorable conditions and his separation code changed from "JJD" to one that reflects the upgrade if afforded by this Board of appeal.  

3.  The applicant provides:

* Two letters of support that were written to the Department of Veterans Affairs (VA)
* Six character reference letters 

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's records show he was born in March 1958.  He enlisted in the Regular Army (RA) at 18 years and 6 months of age on 16 September 1976 and he held military occupational specialty 11C (Indirect Fire Infantryman).  

3.  He was honorably discharged from active duty on 24 October 1978 for the purpose of immediate reenlistment.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 1 month, and 9 days of active service during this period.  

4.  He reenlisted in the RA on 25 October 1978.  He was 20 years and 6 months of age at the time.  He subsequently served in Germany from on or about 
18 January 1979 to 13 January 1981.  He had been promoted to SPC/E-4 on
1 March 1978.  

5.  His records also show he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: 

* 24 April 1979, for wrongfully communicating a threat to injure a sergeant, assaulting a staff sergeant, and being disrespectful in language towards another sergeant; he was reduced to pay grade E-3
* 31 July 1979, for behaving in a disrespectful way toward a commissioned officer; he was reduced to pay grade E-2 

6.  On 31 August 1979, his chain of command initiated a Bar to Reenlistment Certificate against him citing his substandard performance, negative attitude, substandard initiative, repeated lateness to formations, substandard appearance, need for constant supervision, and overall low level of competence.  He was furnished a copy of this bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved. 

7.  On 29 January 1980, at age 21, he was arraigned and tried at a special court-martial at Headquarters, 1st Armored Division, for violating the UCMJ as follows: 

* Charge I, one specification of leaving his appointed place of duty without authority 
* Charge II, two specifications of willfully disobeying a lawful order and one specification of offering violence against a commissioned officer
* Charge III, three specifications of being disrespectful in language towards an NCO, one specification of willfully disobeying a lawful order, and three specifications of assaulting three NCOs
* Charge IV, one specification of striking a private and one specification of assaulting a sergeant 

8.  The court found him guilty of Charge I and its specification, Charge II and one of its three specifications, and Charge III and 4 of its 7 specifications, and not guilty of Charge IV and its two specifications.  The court sentenced him to confinement at hard labor for 30 days, a forfeiture of all pay and allowances, reduction to the lowest enlisted grade (E-1), and a bad conduct discharge. 

9.  On 5 August 1980, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

10.  On 27 August 1980, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty (twice).   

11.  On 5 December 1980, the U.S. Army Court of Military Review affirmed the findings of guilty and the approved sentence. 

12.  On 17 March 1981, the U.S. Court of Military Appeals denied his petition for a grant of review. 

13.  On 16 April 1981, at 23 years of age, he was arraigned and tried at a summary court-martial at Headquarters Command, Fort Dix, NJ, for violating the UCMJ as follows: 

* Charge I, one specification of attempting to assault a Soldier with a dangerous weapon
* Charge II, one specification of unlawfully striking another Soldier in the face
* Charge III, one specification of being disorderly and drunk, one specification of communicating a threat to injure a female Soldier, and one specification of communicating a threat to injure a male Soldier  

14.  The court found him guilty of Charge I and its specification, Charge II and its specification, and Charge III and 2 of its 3 specifications.  The court sentenced him to confinement at hard labor for 30 days and a forfeiture of $100 pay for 
1 month. 

15.  On 16 April 1981, the convening authority approved a lesser sentence of a forfeiture of pay for 1 month and restriction for 60 days with 30 days suspended for 4 months.  The sentence was ordered executed.  

16.  Headquarters, U.S. Army Training Center, Fort Dix, NJ, Special Court-Martial Order Number 76, dated 19 May 1981, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

17.  The applicant was discharged on 17 June 1981.  His DD Form 214 (Certificate of Release of Discharge from Active Duty) shows he was discharged in the rank/grade of private/E-1, as a result of court-martial, in accordance with Army Regulation 635-200 (Personnel Separations), chapter 11, with a bad conduct discharge.  This form further shows he completed 2 years, 2 months, and 15 days of creditable military service during this period and he had lost time from 14 September 1979 to 21 February 1980.  He was assigned a separation code of "JJD." 

18.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

19.  He provides: 

	a.  A letter, dated 15 September 2015, from a pastor to the VA.  The pastor states he has known the applicant for approximately 30 years.  The applicant and his family are faithful members at their church.  The applicant has grown from being a part time attendee at the church to being a willingly active member.  He has worked in several positions in the church and he is currently an active usher. He worked with Sherman Funeral Home until it closed its doors.  He was later employed by Marshel Wright Donaldson Home for funerals.  He has a very supportive family he appears to be devoted to.  He is married and has two adult children and two grandchildren.  He attends church regularly and displays an attitude of willingness to give of himself in whatever capacity he is asked to serve.  He is friendly and engaging. 

	b.  A letter, dated 21 September 2014, to the VA from his neighbor.  She states she has known the applicant more than 26 years as a neighbor and friend. She knows him to be the most dependable, responsible, trustworthy, dedicated and loyal individuals that one can encounter.  If he tells someone he will do a task for them, one can rest assured that it will be done and in a timely manner.  He is active in the community and has a willing spirit to make it better.  He has been a faithful and dedicated employee with Sherman Funeral Home until the family decided to close their family business.  He currently fills in at Marshel Wright-Donaldson Home for Funerals, Inc, when needed.  As one of his neighbors, she is honored to write this letter of character on his behalf.   

	c.  A character reference letter from a school board member who states he has known the applicant since their elementary, junior high, and high school days.  They graduated High School together in 1976.  The applicant is a father of four children and a devoted husband for more than 26 years.  He worked diligently doing several jobs to support his family when he was able.  He is committed to his church and community.  He (the author) is an ordained minister and currently a Beaufort County School Trustee.  The author states without hesitation, he supports the applicant because of the applicant's character, compassion, and courage. 

	d.  A character reference statement, dated 1 September 2014, from a teacher.  She states she recommends the applicant for the upgrade in medical health or benefits that he has applied for.  She is very proud and honored to know him and thinks he deserves the benefits the he may be seeking.  He is very outspoken, caring, giving, and lovable person.  Whenever asked to do something he is always willing and able.  She has known him for over 30 plus years.  She met him when she was a little girl and as she got older and was able to work, she received a job at the local community center where he often volunteers his time mentoring and fellowshipping with today's youth.  He has put in a lot of time with the young men in the community.  He would take them on survival trips, horseback riding, fishing, crabbing, or anything to do with nature.  It was always a pleasure seeing him come through the doors of the center and the room would immediately get quiet.  That's the respect that the youth gave him when he entered the door.  He also worked with the senior citizens in the community.  He is known for outstanding work in the church as a vocalist on the choir, and an usher just standing at the door.  He has been asked to participate in several programs in the church and in the community.  Everybody also knows him from working and volunteering at the nearest funeral home.  His presence brings joy and compassion to every heart.  He is of outstanding moral fiber and virtue and he should be given special consideration.  

	e.  A character reference letter from a deacon who states the applicant is an all around person in the community and a loving family man.  He likes to help everyone in the community, including people he knows and people he does not know.  He is the type of person that will do anything to help.  He is very active in the church, participating in the usher ministry, male choir, and the young adult choir.  He is blessed to have a family and community that love him.  His priority is his family.  

	f.  A character reference letter, dated 21 August 2014, from an individual who states she has known the applicant for 24 years and has watched him grow and inspire the community.  He displays a fatherly figure to his own children and grandchildren as well as other children in the community.  His health is failing but he continues to attend meetings that would help build up the community. 

	g.  A character reference letter from an individual who states she has known the applicant 25 years.  She states that he has changed over the years.  He used to drink and smoke and one couldn't reason with him, but he has always been kind and helpful.  He has had heart attacks and strokes multiple times.  There were major changes in his life about four years ago.  He gave his life to the Lord and got back into Church; he started helping in every way that he could.  He is an usher at the church, but he had to take a leave of absence because of his sickness.  She remembers when he would spend his money on any and everything.  Now when he gets his check he put some money aside so he can help his wife or just in case something comes up.  God has made a tremendous change in his life.  He is now more helpful, considerate, reliable, dependable and respectful, and the happiest she has ever seen him.  She stands behind him one hundred percent because that is how much she believes in him.

	h.  A character reference letter, dated 1 September 2014, from an individual who states the purpose of his letter is to validate that he has known the applicant for several years.  The applicant is a community person and he attends Church regularly where he serves as an usher.  He recommends him for any opportunity he encounters.

20.  Army Regulation 635-200 provides 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.  Paragraph 3-7c provides that an 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, homosexuality, security reasons, or for the good of service in certain circumstances.

	d.  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.

21.  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.

22.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The SPD Code of "JJD" is used when the authority for discharge is Army Regulation 635-200, chapter 11, as a result of a court-martial.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service: 

	a.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  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.

	b.  His trial by a special court-martial was warranted by the gravity of the offenses charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

	c.  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.
	d.  The applicant was 18 years of age at the time of his first enlistment and 20 years of age at the time of his reenlistment.  He was 21 years of age when he was convicted by a court-martial the first time and 23 years of age when he was convicted by a court-martial the second time.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

	e.  His service was not satisfactory as evidenced by his multiple instances of NJP, bar to reenlistment, and two courts-martial convictions, and he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  

2.  His separation code was assigned based on the fact that he was discharged under the provisions of chapter 11 of Army Regulation 635-200 due to a court-martial conviction.  Absent the applicant’s conviction that resulted in his bad conduct discharge there was no fundamental reason to discharge him.  The underlying reason for his discharge was his court-martial conviction.  The only valid narrative reason for separation permitted is "Court-Martial" and the appropriate SPD code associated with this discharge is "JJD."  This SPD code is correctly shown on his DD Form 214 and there is no reason to change it.

3.  The applicant's post-service life improvements are commended and the character reference letters he provided were noted.  Unfortunately, they do not outweigh the misconduct that led to his court-martial conviction.  After a thorough review of his case, it is clear that he was discharged under the appropriate separation authority, received the appropriate character of service, and he was assigned the appropriate separation code.  In view of the foregoing, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION


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 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.

ABCMR Record of Proceedings (cont)                                         AR20140018712



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ABCMR Record of Proceedings (cont)                                         AR20140018712



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