RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 18 March 2004
         DOCKET NUMBER: AR2003091434


         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Linda D. Simmons		Member
Mr. Robert J. Osborn		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his Bad Conduct Discharge (BCD) be upgraded.

2. The applicant states that he was under the influence of alcohol when he committed the acts that lead to his court-martial.

3. The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an alleged injustice which occurred on 10 January 1991. The application submitted in this case is dated 4 May 2003.

2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant enlisted on 22 May 1987 under the delayed entry program and entered active duty on 11 September 1987. He completed training and served as an 11B (light weapons infantryman) without reported incident until 31 December 1989.

4. On 31 December 1989, the applicant and a dependent son of a service member used a key, which he alleges he found, to enter the barracks room of a fellow soldier and removed a videocassette recorder (VCR) and a gold necklace. During the investigation the applicant originally denied that he had any knowledge of the theft. He later informed the victim that he also had some money stolen on the same night. Subsequent to that he stated that he knew who had taken the items and would try to get them returned. A few days later the applicant placed the VCR and $25.00 in a pillowcase then placed an anonymous call to have them recovered.

5. On 9 March 1990 the applicant was charged with unlawful breaking and entering, conspiracy to steal property in excess of $100.00, larceny in excess of $100.00, and being absent without leave (AWOL) on 27 February 1990.

6. On 20 March 1990 the applicant with counsel appeared before a hearing convened under Article 32(b), Uniform Code of Military Justice. The investigating officer recommended that the AWOL charge be dismissed and that the applicant be referred to a special court-martial on the charges of unlawful breaking and entering, conspiracy to steal property in excess of $100.00, and larceny in excess of $100.00.

7. The convening authority did not accept the recommendation to have the case adjudged by a special court-martial and directed the applicant appear before a general court-martial (GCM).

8. On 10 April 1990 the applicant submitted a plea agreement to plead guilty to the conspiracy and larceny charges, a lesser charge of unlawful entry, and not guilty to the AWOL charge in exchange for an agreement for the convening authority not to impose any period of confinement in excess of one year.

9. The applicant appeared before a GCM on 25 April 1990. During the trial the applicant indicated that he was under the influence of alcohol at the time and that it was the other person involved in the incident that suggested that they take the VCR. He was found guilty of unlawful entry, conspiracy to steal property in excess of $100.00, and larceny in excess of $100.00. He was sentenced to be reduced to pay grade E-1, to be confined for nine months, to forfeit of all pay and allowances, and to be discharged with a BCD.

10. The convening authority approved the findings and sentence of the GCM on 18 May 1990.

11. The applicant’s case was referred to the United States Army Court of Military Review (USACMR). He requested clemency and to have that portion of his sentence as related to full forfeiture be reduced, because he was assisting his sister to attend college.

12. USACMR reviewed the court-martial proceedings and, on 28 September 1990, affirmed the findings and sentence as approved by the convening authority and determined that no corrective action was necessary or clemency was warranted. The applicant did not appeal to the United States Court of Military Appeals within the allowed 60-day appeal period.

13. The applicant was placed on involuntary excess leave effective 30 November 1990.

14. The appeal provisions of Article 71c of the Uniform Code of Military Justice were satisfied and the BCD was ordered executed.

15. The applicant was separated, on 10 January 1991, with a BCD. He had 2 years, 8 months, and 21 days of creditable service with 41 days of excess leave. His lost time due to confinement is not specified in the available record.

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16. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 4 May 2003. Under the statute pertaining to the ADRB, that board does not have the authority to act on discharges resulting from a GCM. Therefore, the applicant’s application was referred to this Board for action.

17. 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. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-4), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

DISCUSSION AND CONCLUSIONS:

1. The applicant applied to the ADRB under the incorrect assumption that it was the proper board to review his request for an upgrade within the statutory time limits for that board. The application (DD Form 293) was referred to the Army Board for Correction of Military Records (ABCMR) for review without having him complete the correct application form.

2. The applicant should have been advised at that time of the differences in the procedures and statutory time limits for applications to the ABCMR. However, to return the application to complete a proper application to the ABCMR would only compound the error and create an injustice.

3. Therefore, it is appropriate to waive the ABCMR failure to timely file provisions as if the ADRB had acted on the application and review this case on its merits.

4. The applicant’s contention that he was under the influence of alcohol was addressed at both the GCM and the USACMR. Further, intoxication does not excuse misconduct. That this standard of conduct is accepted not only by the military but also by society as a whole is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior.

5. The applicant has failed to provide any evidence or argument that was not presented and dismissed at either his GCM or by the USACMR.
BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

_LDS ___ __RJO __ __RWA___DENY APPLICATION

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.





                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091434
SUFFIX
RECON
DATE BOARDED	20040318
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	Upgrade
2.
3.
4.
5.
6.