RECORD OF PROCEEDINGS


	IN THE CASE OF:  
	 

	BOARD DATE:          8 September 2005                    
	DOCKET NUMBER:  AR20050001267


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. John Meixell

Chairperson

Mr. William Powers

Member

Mr. Larry Olson

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that clemency in the form of a discharge upgrade be granted.

2.  The applicant states, in effect, that he is unable to obtain a good job to support his family with a dishonorable discharge. 

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an alleged injustice which occurred on 25 May 1994.  The application submitted in this case is dated 17 January 2005.  

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 limitations 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.  Having prior active service, the applicant enlisted in the Regular Army on 
17 March 1992 for a period of 5 years.  He successfully completed One Station Unit Training in military occupational specialty 95B (military policeman).

4.  On 12 February 1993, in accordance with his pleas, the applicant was convicted by a general court-martial of five specifications of writing bad checks in the amount of $1535.02 and stealing blank checks.  He was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined for 22 months, and to be discharged from the service with a dishonorable discharge.  On 14 May 1993, the convening authority approved only so much of the sentence as provided for reduction to E-1, forfeiture of all pay and allowances, confinement for 12 months, and a dishonorable discharge.  

5.  The decision of the U.S. Army Court of Military Review is not available.  The dishonorable discharge was ordered to be executed on 6 May 1994.

6.  Accordingly, the applicant was dishonorably discharged on 25 May 1994 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served 1 year, 8 months and 13 days of total active service with 276 days of lost time due to confinement.  He had 191 days of excess leave 
(16 November 1993 to 25 May 1994). 

7.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed. 

8.  Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action.

9.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  Army Regulation 635-200, paragraph 3-7, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  A discharge is not upgraded for the sole purpose of obtaining employment opportunities. 

2.  Evidence of record shows the applicant, a military policeman, was dishonorably discharged for stealing blank checks and writing bad checks.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable discharge is not warranted in this case nor was his service sufficiently satisfactory to warrant a general discharge.

3.  Records show the applicant should have discovered the alleged injustice now under consideration on 25 May 1994; therefore, the time for the applicant to file a request for correction of any injustice expired on 24 May 1997.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JM_____  WP_____  LO______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




		_____John Meixell_____
		        CHAIRPERSON





INDEX

CASE ID
AR20050001267
SUFFIX

RECON

DATE BOARDED
20050908
TYPE OF DISCHARGE
DD
DATE OF DISCHARGE
19940525
DISCHARGE AUTHORITY
AR 635-200 Chapter 3
DISCHARGE REASON
As a result of court-martial
BOARD DECISION
NC
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.