IN THE CASE OF:  	  

		BOARD DATE:  20 August 2015	  

		DOCKET NUMBER:  AR20150000961 


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 request for correction of his records by showing he was granted clemency and issued an administrative discharge.

2.  The applicant states he is grateful for the partial relief granted by the Army Board for Correction of Military Records (ABCMR) by characterizing his initial period of active duty service as honorable.  However, he states the reason and decision of the Board appears to apply a double-standard.  Specifically, the period of service from the date of his reenlistment up to the date of his court-martial was not recognized as honorable service simply because of his honorable discharge for the purpose of immediate reenlistment.

   a.  He asserts the two year period following his reenlistment was honorable.  He states the Board "draw[s] a line and breaks the continuous service previously cited for the sake of still having the BCD [Bad Conduct Discharge] attached to [his] entire service record."  He notes that he was promoted to grade E-5 during the period of his reenlistment; however, based on the reason cited by the Board, he is not being properly credited with this continuous honorable service.

   b.  He states that since the Board's decision is final on the issue of prior service, he feels that clemency is warranted in the interest of fairness.  He also states, 
   
On one hand I'm being robbed of an additional two years of honorable service (result of prior decision) characterized as dishonorable; on the other hand, the honorable service you did give me credit for is not being separated from the BCD.  If you can separate my continuous honorable service at the point of reenlistment, then you should separate my prior enlistment on a separate DD Form 214 or grant clemency.  After all, over five years of honorable service far outweighs one mistake.

   c.  He also requests information on any appeal avenues, if his request for reconsideration is not granted, 

3.  The applicant provides no documentary evidence in support of his request for reconsideration.

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 ABCMR in Docket Number AR20130015342, on 9 April 2014.

2.  The applicant enlisted in the Regular Army (RA) on 6 March 1980 for a period of 4 years.  He was awarded military occupational specialty 91B (Medical Specialist).  On 2 October 1983, he was discharged to immediately reenlist.

3.  On 3 October 1983, he reenlisted in the RA for a period of 6 years.  He was promoted to specialist five (SP5)/E-5 on 1 October 1984.

4.  On 9 August 1985, before a special court-martial at Fort Sam Houston, TX, he pled guilty to, and was convicted of violating:

* Article 121, Uniform Code of Military Justice (UCMJ), larceny of private property in excess of $100
* Article 86, UCMJ, failure to repair
* Article 91, UCMJ, disobeying a lawful order

   a.  He was sentenced to reduction to the grade of E-1, forfeiture of $413.00 pay per month for 3 months, confinement for 3 months, and discharge from the Army with a BCD.

   b.  The convening authority approved the sentence and, except for the BCD, ordered it executed.

5.  The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial.  The U.S. Court of Military Appeals denied his petition for review.

6.  The provisions of Article 71(c), UCMJ, having been complied with, the BCD was ordered duly executed.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 27 March 1986, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial with a bad conduct character of service.

8.  A review of the applicant's military personnel records failed to reveal evidence of the completion of any military training courses, civilian education, or that he received any individual awards subsequent to 5 March 1983.

9.  On 16 August 2013, the applicant requested recognition of his prior honorable service and/or upgrade of his BCD to an Other Than Honorable Discharge.

10.  On 9 April 2014, as a matter of equity, the ABCMR granted the applicant partial relief and corrected his DD Form 214 to show in item 18 (Remarks) his period of continuous honorable active service from 6 March 1980 through 2 October 1983.  Accordingly, a DD Form 215 (Correction to DD Form 214) was issued on 19 May 2014.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Effective 1 October 1979, this Army regulation ended the requirement to prepare a DD Form 214 for enlisted Soldiers discharged for immediate reenlistment.

12.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 (Character of Service/ Description of Separation) shows that Title 10, U.S. Code, section 1168, provides that a discharge certificate or certificate of release from active duty will be given to each Soldier of the Army upon discharge from the Service or release from active duty.

   a.  Paragraph 3-8 (Limitations on characterization) shows the characterization will be determined solely by the Soldier's military record which includes the Soldier's behavior and performance of duty during the current enlistment or period of service to which the separation pertains, plus any extensions prescribed by law or regulation or effected with the consent of the Soldier.
   
   b.  Paragraph 3-11 provides that 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.

13.  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.

14.  Army Regulation 15-185 (ABCMR) sets forth procedures for processing requests for correction of military records.  Chapter 2 (General), paragraph 2-15, governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the ABCMR's original decision and it has not previously been reconsidered.  If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration (emphasis added), then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration for correction of his records by granting him clemency and changing his punitive characterization of service to an administrative characterization of service was carefully considered.

2.  The evidence of record shows effective 1 October 1979, the separation documents regulation ended the requirement to prepare a separate DD Form 214 for enlisted Soldiers discharged for immediate reenlistment.  The evidence of record also shows the characterization of service will be determined solely by the Soldier's military record which includes the Soldier's behavior and performance of duty during the current enlistment or period of service to which the separation pertains (emphasis added).

   a.  On 9 April 2014, the ABCMR corrected the applicant's DD Form 214 to show his characterization of service during the period of his initial enlistment in the RA from 6 March 1980 until 2 October 1983 was honorable.

   b.  He reenlisted in the RA on 3 October 1983 for a period of 6 years and he was promoted to grade E-5 on 1 October 1984.
    	(1)  He then committed acts of misconduct in violation of the UCMJ that included three separate charges for which he was subsequently convicted by court-martial on 9 August 1985.  He was sentenced to, in pertinent part, reduction from grade E-5 to grade E-1 and a BCD.

    	(2)  He completed less than 2 years and 6 months of his 6-year RA reenlistment obligation.

    	(3)  Thus, it is concluded that the applicant's record of service during the period under review (3 October 1983 through 27 March 1986) did not meet the standards of acceptable conduct and performance of duty for Army personnel. 
   
3.  In his argument he states that the first 2 years of his reenlistment are not accounted for and should be honorable.  However, what he does not take into consideration is he reenlisted for a 6-year period of service, not 2-year increments as he purports in his argument.  An enlistment period is a contractual period of service that cannot further be broken down into separate periods of honorable service prior to one’s misconduct as he alleges in his argument.  The Board did differentiate his first contracted enlistment period from his second contracted period when it corrected his DD Form 214 in its initial decision.  

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.  Absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  The applicant provided no mitigating factors nor were any found during the mandated conviction appeal process.  As a result, clemency is not warranted in this case nor is the issuance of an administrative discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20130015342, dated 9 April 2014.




      _______ _   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)                                         AR20150000961



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ABCMR Record of Proceedings (cont)                                         AR20150000961



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