PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           17 April 2003                  
	DOCKET NUMBER:   AR2002078255

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Walter Avery, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison 		Chairperson	
	Mr. Harry B. Oberg		Member	
	Mr. Ronald J. Weaver		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests the upgrading of his discharge to an honorable discharge.

3.  The applicant states, in effect, that at the time of his discharge he was 20 years of age.  He was immature, did not understand how to balance a checkbook or that post dating checks was illegal.  He believes it was unjust for him to receive a Bad Conduct Discharge, imprisonment, fines and reduction to pay grade E-1 for a single offense after completing three fourths of his tour.

4.  The applicant’s military records show that on 1 December 1983, he entered the Regular Army for a period of 3 years and training as a Lance missile crewmember.

5.  On 6 March 1986, the applicant plead guilty to one charge of Article 123a, Under the Uniform Code of Military Justice, before a special court-martial.  The charge was that between 1–11 November 1985, the applicant, with intent to defraud, wrote drafts for $700.00, knowing that he would not have sufficient funds for the payment of said drafts.  There was no record of punishment under Article 15 or previous convictions by court-martial.

6.  During the trial the applicant took the stand.  In response to questions the applicant acknowledged that he was paid twice a month, but learned that the Post Exchange held checks for a period of time before cashing them.  He wrote the checks primarily to buy clothing and food.  The purchase of clothing was because a lot of people in his unit and other people were basically making fun of the clothing he had worn from back home.  It kind of got to him, it was hurting his feelings, so he went and got clothing so they would stop making fun of him.

7.  The applicant’s company commander testified that in his opinion the applicant had no rehabilitation potential as evidenced by his immaturity as far as hygiene, personal appearance and leadership potential.  He acknowledged that the applicant had not been reduced in rank.

8.  Just prior to sentencing, the applicant submitted a statement to the court. He acknowledges the seriousness of his crime and believes that his age, military record and the circumstances surrounding his bad checks warrants suspension of the bad conduct discharge, to allow him another chance in the military.  He regrets that he was gullible enough to fall into the trap of caring about what people thought of his off duty appearance.  Thus, he spent a fair amount of the money he obtained through checks on clothes, which he hoped would win the approval of his peers at the unit.  In addition, he made the mistake of renting a 

car at an exorbitant price, further draining his finances.  He knows that he cannot expect others to bear the responsibility for his mistakes.  He believes his mistakes are typical of someone his age.  His age is not an excuse for his misconduct, merely a mitigating circumstance that suggests that the conduct will not be repeated.  If he was discharged from the service with a punitive discharge, he will be saddled with a lifetime punishment that will limit his employment opportunities.  Also, the stigma of a bad-conduct discharge will earn him the scorn of the civilian community.  He believes this is an unduly severe punishment and not appropriate in his case.

9.  On 6 March 1986, the applicant was found guilty and was sentenced to reduction to the grade of E-1, a forfeiture of pay, confinement for 60 days, and a bad conduct discharge.

10.  On 11 April 1986, Special Court-Martial Order Number 26 approved his sentence and directed that a bad conduct discharge be executed.

11.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflects his discharge on 23 April 1986, under the authority of Special Court Martial Order #26, dated 11 April 1986 and credit for total active military service of 2 years, 4 months and 1 day.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statue of limitations.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes, [SPD]), provides that SPD code JJD relates to the narrative reason of court-martial and discharge under the authority of Army Regulation 635-200,chapter 3.

14.  Army Regulation 635-200 (Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, provides that a soldier will be given a punitive discharge (bad conduct discharge or dishonorable 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.

CONCLUSIONS:

1.  The applicant’s discharge under the authority of Special Court Martial Order Number 26 was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The Board after considering the testimony of the applicant’s company commander accepts that the applicant displayed an unusual immaturity for a person 20 years of age, in handling the teasing of his peers over his clothing. 
The Board considered that no incremental steps were taken prior to the decision to court-martial him.  The applicant’s records reveal he had no lost time, he served 28 months of his 36 month enlistment, and no cogent reason was presented by the company commander for denying the applicant an attempt at rehabilitation.  These facts and the passage of approximately 17 years since his discharge, leads the to conclude that action to moderate the severity of the Bad Conduct Discharge imposed is warranted.  However, immaturity is not a sufficiently mitigating circumstance and it would not be equitable to characterize his service as fully honorable.  It appears that the interest of justice would best be served by changing the applicant’s characterization of service to general, under honorable conditions. 

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below. 

RECOMMENDATION:

1.  That all of the Department of the Army records be corrected to show that the individual concerned was separated from the service with a General Discharge Certificate on 4 September 1973.

2.  That the Department of the Army issue to the individual concerned a General Discharge Certificate from the Army of the United States, dated 23 April 1986 in lieu of the discharge of the same date now held by him.
3.  That so much of the application as is in excess of the foregoing be denied. 

BOARD VOTE:  

___hbo__  ___rjw___  ____wtm_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___________Walter T. Morrison ______
		        CHAIRPERSON

INDEX

CASE ID	AR2002078255	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030417	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	144.9229	
2.		
3.		
4.		
5.		
6.