IN THE CASE OF:	  

		BOARD DATE:	  29 September 2015

		DOCKET NUMBER:  AR20150000350 


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) to either honorable or under honorable conditions (general).

2.  He states his discharge was inequitable because the discretion used for implementing a court-martial instead of nonjudical punishment was inconsistent with the policies and traditions of the military

3.  The applicant provides a self-authored statement, a statement from his spouse, and six statements of recommendation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's discharge be upgraded from a BCD to either honorable or general and all adverse documents, to include the court-martial, bar to reenlistment, reprimands, and nonjudicial punishments (NJPs), be removed from his record and/or placed in his restricted file.  Additionally, he requests, in effect, military funeral honors for the applicant. 

2.  Counsel provides a brief synopsis of the applicant's military service and expounds on his achievements while serving in the Army. 

   a.  He explains that in 1985, the applicant's spouse and children left him and the applicant became very depressed and distraught, and self-medicated by abusing substances.  He adds that the applicant did not receive treatment as requested and his substance abuse condition contributed to his poor decision making skills.  He states that during this period the applicant received two Article 15s, a bar to reenlistment, and finally, a BCD.
   
   b.  His counsel argues that the use of NJP was improper because nonpunitive measures could have been adequate and appropriate to address the applicant's deteriorating relationship and substance abuse needs.  He maintains that the applicant could have benefited from less stringent measures and his career could have been preserved from unnecessary stigma.  He opines that since the applicant did not receive assistance as requested, his record reflects that of a Soldier in a downward spiral, seeking comfort in anyone that would listen, engaging in reckless behavior, and suffering the harsh consequences that came from those choices within a very small window in an otherwise impeccable career.

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 (RA) on 8 January 1976 and served until he was honorably discharged from active duty on 26 September 1979 for the purpose of immediate reenlistment.

3.  His record contains a Certification of Military Service issued on 3 September 2014, which shows he served in the RA from 27 September 1979 to 13 October 1983 and he was honorably discharged.

4.  On 14 October 1983 he again enlisted in the RA.

5.  His disciplinary history includes his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as a staff sergeant (SSG)/E-6 on two separate occasions:

* 8 July 1985 for failing to go at the time prescribed to his appointed place of duty on 29 May 1985 
* 30 April 1986 for operating a vehicle while drunk on 23 October 1985. 

6.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 2 April 1986, shows the applicant’s company commander recommended his bar to reenlistment.  The approval was based on the applicant receiving an Article 15 for failing to go at the time prescribed to his appointed place of duty on 8 July 1985.  At the time the applicant did not submit a statement in his own behalf. 

7.  The appropriate approval authority approved the bar to reenlistment.  The approval endorsement states the document would be filed in the applicant’s permanent file of his official military personnel record (OMPF).  The remark "not recommended for further service" would be entered on the applicant’s DA Form 2-1 (Personnel Qualification Record).

8.  On 2 July 1986, he appealed the bar to reenlistment.  He stated he had a serious alcohol/substance abuse problem which was at the root of his difficulties with the Army and the civilian part of his life, to include his marriage which was terminated due to divorce in 1985.  He explained that prior to being assigned to the unit, his previous 8 years of service were very good.  However, he felt that his recent transgressions were symptoms of a disease process and he could once again be a fully functional noncommissioned officer if he were afforded some treatment for his disease.

9.  On 9 July 1986, the commander informed her higher chain of command that she was favorably considering lifting the applicant's bar to reenlistment, but he came up positive on the field test for two separate urine samples.  She further stated that chapter 14 proceedings were automatically initiated to remove a Soldier from the military who uses illegal drugs.  The battalion commander concurred.

10.  On 6 November 1986, he was convicted by a general court-martial for:

* wrongfully engaging in social fraternization with a private (PVT)/E-2 in a training status, by living together from on or about 31 May to 14 July 1986
* wrongfully engaging in sexual intercourse with a PVT/E-1 in a training status, on divers occasions from on or about 4 May to 28 June 1986
* wrongfully engaging in sexual intercourse with a PVT/E-1 in a training status, on divers occasions from on or about 3 to 6 July 1986 and 
12 to 13 July 1986
* wrongfully using marijuana between 24 May and 25 June 1986 

11.  He was sentenced to reduction PV1/E-1, a forfeiture of all pay and allowances, confinement for 5 months, and a BCD.  The convening authority approved the sentence, and on 4 May 1987 his sentence was affirmed and the BCD ordered executed.

12.  The applicant's record is void a mental health or physical examination. However a DA Form 3081-R (Periodic Medical Examination (Statement of Exemption)), undated, shows he signed this form stating that he underwent a medical examination in conjunction with his separation on 28 January 1987 at Irwin Army Community Hospital, Fort Riley, KS and to the best of his knowledge there had been no significant changes in his medical condition.

13.  On 14 May 1987, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), chapter 3, by reason of court-martial with a BCD.  His DD Form 214 (Certificate of Release or Discharge) shows he completed 3 years, 2 months, and 25 days this period with a total period of active service listed as 7 years, 9 months and 6 days.  His lost time was from 6 November 1986 to 9 March 1987.

14.  He submitted seven character reference statements from his spouse and co-workers who indicated that he was hardworking, considerate, courteous, helpful, respectful, and a well-liked person who has worked in Veterans Village of San Diego for 7 years.  Additionally, they opined that he works well with others and has a positive influence on other employees.

15.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.

   a.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	b.  Paragraph 3-2 states the use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that nonjudicial punishment will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for nonjudicial punishment to have the proper corrective effect.  Nonjudicial punishment may be imposed to:

* correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures
* preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction
* further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 (BCD) states a Soldier will be given a BCD 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.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.

	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.  

17.  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 ABCMR acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

18.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  The regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records (ABCMR).

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends that the applicant's discharge should be upgraded because the use of judicial and nonjudical punishment was improper.  He argues that nonpunitive measures could have been adequate and appropriate to address the applicant's relationship and substance abuse needs.   

2.  Whether or not to administer nonpunitive administrative measures versus nonjudicial punishment is at the discretion of the commander.  The evidence of record shows the applicant was a senior SSG at the time he received both NJPs.  Further, the commander stated that she was favorably considering lifting the applicant's bar to reenlistment, but he came up positive on two separate urine samples.  Therefore, it appears that the command considered their options prior to imposing the NJPs and prior to his conviction by a general court-martial.  

3.  The evidence shows the applicant indicated he had an alcohol/substance abuse problem on 2 July 1986, during an appeal of his bar to reenlistment.  It is unknown if he received and/or sought treatment.  However, prior to his separation, he waived his medical examination and stated that he underwent a medical examination in conjunction with his separation on 28 January 1987.  Therefore, he was medically cleared for separation.

4.  The evidence of record further shows he was convicted by a general court-martial that was warranted by the gravity of the offenses charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.

5.  He was sentenced to a BCD pursuant to an approved sentence of a general court-martial.  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.

6.  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.  While there is a record of good service, it is presumed that this service was taken into consideration at the time of sentencing.  Therefore, given his offenses and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case. 

7.  Likewise, there is no evidence to show that the Article 15s or the reasons for bar to reenlistment were untrue or unjust thereby warranting removal from his record and/or placing them in the restricted file.

8.  Additionally, counsel’s request that the applicant be eligible to receive military funeral honors is not within the purview of this Board and would be more appropriately addressed by contacting the Department of Veterans Affairs.

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)                                         AR20150000350



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ABCMR Record of Proceedings (cont)                                         AR20150000350



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