IN THE CASE OF:	   

		BOARD DATE:	  4 August 2015

		DOCKET NUMBER:  AR20140021278 


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. 

2.  The applicant states, in effect, while stationed in Korea, his wife was living stateside.  She deserted him and took their four children with her.  He was unable to handle the stress and he began drinking and using drugs.  His work suffered and he was court-martialed in or around August 1985.  Prior to that he had an exemplary record with two Army Good Conduct Medals and an Army Achievement Medal for service at Fort Riley, KS.  His post-service achievements include being clean for 14 years, caring for his parents until they died, and participating in a neighborhood watch.  Due to the character of his service he is being denied benefits for his service-connected disabilities.  He reenlisted for 6 years, but his entire period of service is considered bad and thus he was denied benefits. 

3.  The applicant provides his 1987 DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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.  Having had prior active service and service in the Army National Guard, the applicant enlisted in the Regular Army on 23 October 1978.  He held military occupational specialties 75F (Personnel Information Systems Specialist) and 91B (Medical Specialist). 

3.  He served through two reenlistments on 27 March 1980 and on 27 December 1983, in a variety of stateside or overseas assignments, including Germany from May 1980 to March 1983 and Korea from December 1984 to December 1985, and he attained the rank/grade of specialist five/E-5.  His last reenlistment was executed on 27 December 1983. 

4.  He was awarded or authorized the Army Good Conduct Medal, Army Service Ribbon, Overseas Service Ribbon, NCO Professional Development Ribbon, Army Achievement Medal, and National Defense Service Medal. 

5.  On 18 September 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 11 to 12 September 1985. 

6.  On 18 October 1985, he again accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully possessing marijuana. 

7.  On 30 July 1985, he was arraigned and tried at a special court-martial at Headquarters, 2nd Infantry Division, Korea for violating the UCMJ.  He was convicted of the following: 

* one specification of violating a general regulation by wrongfully possessing and using the ration control and identification card of another service member
* one specification of wrongfully and willfully impersonating a noncommissioned officer

8.  The court sentenced him to a reduction to the lowest enlisted grade and a bad conduct discharge.  On 3 September 1985, the convening authority approved the sentence as provided for reduction to the lowest enlisted grade and a bad conduct discharge, 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.

9.  On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Special Court-Martial Order Number 31, dated 21 May 1987, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

11.  On 8 June 1987, Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, published Orders 159-217 ordering his discharge from active duty effective 16 June 1987. 

12.  The applicant was discharged on 16 June 1987.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 as a result of court-martial in accordance with Special Court-Martial Order Number 31, dated 21 May 1987 [and Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)], with a bad conduct discharge.  This form further shows he completed 8 years, 
7 months, and 24 days of creditable active military service, during this period, with 6 months and 11 days of prior service.  His DD Form 214 also shows in item 18 (Remarks) entries pertaining to his immediate reenlistment and excess leave. 

13.  On 29 August 2001, the Army Discharge Review Board reviewed his discharge but found it proper and equitable.  The ADRB denied his petition for an upgrade of his discharge. 

14.  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.

15.  Army Regulation 635-200, 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.

16.  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.

17.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and will be prepared for all personnel at the time of retirement, discharge, or release from active duty.  Item 18 of the version in effect at the time was used for entries required by Department of the Army for which a separate block is not available and tor completing entries that are too long for their blocks.  

	a.  Reenlistments: Enter list of reenlistment periods for which a DD Form 214 was not issued, if applicable.  For example, "Immediate reenlistments this period: 761218-791001; 791002-821001."  However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," the following statement will appear as the first entry in block 18, "Continuous Honorable Active Service From (first day of service for which a DD Form was not issued, such as 761218) until (date before commencement of current enlistment, such as 821001)"; then enter the specific periods of reenlistments as prescribed above.

	a.  Excess leave: enter the total number of days and inclusive dates of excess leave status, e.g., "Excess leave (creditable for all purposes except pay and allowances)--10 days: 870515--870524." 

DISCUSSION AND CONCLUSIONS:

1.  With respect to the characterization of service: 

	a.  The applicant's trial by a special court-martial was warranted by the gravity of the offense 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.

	b.  He 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.


	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.  His service during his final enlistment was not satisfactory as evidenced by multiple instances of NJP for serious offenses and his conviction by a special court-martial.  His service 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.  Nevertheless, the applicant completed multiple enlistments/reenlistments from date of entry (23 October 1978) to date of discharge (16 June 1987).  

	a.  He enlisted on 23 October 1978 and he was discharged on 26 March 1980 for the purpose of reenlistment.  This period of service was honorable.  He reenlisted on 27 March 1980 and he was again discharged on 26 December 1983.  This period of service was also honorable.  He reenlisted on 27 December 1983 and he was discharged on 16 June 1987 with a bad conduct discharge.  The Army had discontinued the issuance of a separate DD Form 214 for each period of enlistment or reenlistment in October 1979.

	b.  The regulation stipulated that for Soldiers who have previously reenlisted without being issued a DD Form 214 and who are being separated with any characterization of service except "Honorable," this statement will appear as the first entry in block 18, "Continuous Honorable Active Service From (first day of service for which a DD Form 214 was not issued) until (date before commencement of current enlistment)."  Therefore, item 18 of his DD Form 214 should be corrected to show his honorable service from date of enlistment (23 October 1978) to the date prior to his last reenlistment (26 December 1983).  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to item 18 of his DD Form 214 the entry "Continuous Honorable Active Service from 23 October 1978 until 26 December 1983." 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his bad conduct discharge. 



      ___________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)                                         AR20140021278





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ABCMR Record of Proceedings (cont)                                         AR20140021278



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