RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  3 May 2007
	DOCKET NUMBER:  AR20060013880 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Richard T. Dunbar

Chairperson

Mr. Michael J. Flynn

Member

Ms. Rose M. Lys

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, upgrade of his Bad Conduct Discharge to an honorable discharge.

2.  The applicant states, in effect, that he enlisted in the Army at 17 years of age and subsequently made poor decisions that were both juvenile and irresponsible. He also states, in effect, that as a 42 year old husband and father, as well as a student pursuing a nursing degree, he has changed significantly and grown into a responsible and contributing member of society.

3.  The applicant provides 8 character reference letters, with dates between
4 October 2005 and 29 August 2006; Official Report of Test Results, Tests of General Educational Development (GED) issued by Official GED Centers of the General Educational Development Testing Service of the American Council on Education, dated 5 January 2002; Concorde Career College, Patient Care Assistant Diploma, dated May 2003; Southwest Tennessee Community College, Memphis, Tennessee, Spring 2006 Grade Report, dated
31 May 2006; and Southwest Tennessee Community College, Memphis, Tennessee, Statement of Account, Class Schedule, dated 24 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 20 November 1982, the date of this discharge from the Army.  The application submitted in this case is dated 21 September 2006.

2.  On 30 April 1981, the applicant completed a DD Form 1966 (Application for Enlistment - Armed Forces of the United States).  This document shows in Section IX (Parental/Guardian Consent for Enlistment) the applicant's father is deceased and his mother certified the applicant's birthday is 25 January 1964.  This item also shows that his mother, Rose B. P_____, indicated her consent to the applicant's enlistment by placing her signature on the document.  At the time, the applicant was 17 years old.

3.  On 28 April 1981, the applicant enlisted in the U.S. Army Reserve for a period of 6 years.  He subsequently enlisted in the Regular Army and entered on active duty for 3 years on 30 April 1981.  Upon completion of basic combat training, the applicant was trained in, awarded, and served in military occupational specialty (MOS) 94B (Cook).  The highest rank the applicant attained was private/pay grade E-1.  The applicant’s military service records document no acts of valor, significant achievement, or service warranting special recognition.
4.  On 25 November 1981, the applicant accepted non-judicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty, the Strasburg Kaserne Consolidated Dining Facility on 7, 8, and 12 November 1981. His imposed punishment was forfeiture of $75.00 pay, 14 days extra duty (with
7 days suspended for 90 days), and 14 days restriction.

5.  On 26 February 1982, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty, the Strasburg Kaserne Consolidated Dining Facility on 27 January 1982; willfully disobeying a lawful order from a superior noncommissioned officer; being disrespectful in language toward a superior noncommissioned officer; and failing to obey a lawful order.  His imposed punishment was forfeiture of $200.00 pay per month for 2 months (with $75.00 per month for 2 months suspended for 6 months), 45 days extra duty (with 15 days suspended for 6 months), and 45 days restriction (with 15 days suspended for 6 months).

6.  On 31 March 1982, the applicant was convicted at a special-court martial convened by Headquarters, 8th Infantry Division at Baumholder, Federal Republic of Germany, for larceny of $110.00.  His punishment was a bad conduct discharge, confinement at hard labor for 3 months, forfeiture of $367.00 per month for 3 months, and reduction to the rank of private/pay grade E-1.  On
20 April 1982, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 2 months, forfeiture of $367.00 per month for 3 months, and reduction to the rank of private/pay grade E-1.

7.  The applicant was confined by military authorities from 31 March 1982 through 19 May 1982.  The applicant was in an excess leave status without pay and allowances from 3 June 1982 through 20 November 1982.

8.  On 9 June 1982, the U.S. Army Court of Military Review reviewed and affirmed the approved findings of guilty and the sentence.  The applicant petitioned the U.S. Court of Military Appeals for review of his conviction and sentence.  On 14 September 1982, the Court denied the applicant's petition to grant a review.

9.  Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Special Court-Martial Order Number 112, dated 18 October 1982, shows, in pertinent part, that the applicant's sentence was affirmed pursuant to Article 66, the provisions of Article 71(c) had been complied with, and the sentence was ordered duly executed.  These orders also show that the portion of the sentence pertaining to confinement had been served.
10.  On 20 November 1982, the applicant was discharged with a Bad Conduct Discharge under the provisions of Army Regulation 635-200, Chapter 3, Section IV, as a result of court-martial.  He completed 1 year, 5 months, and 2 days of creditable active military service.

11.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.

12.  In support of his application, the applicant provides 8 character reference letters, an Official Report of GED Test Results, Patient Care Assistant Diploma, and Southwest Tennessee Community College Spring 2006 Grade Report and Class Schedule.  These documents, in pertinent part, attest to the applicant's good character, dependability in his job as a nursing assistant and patient advocate, his involvement in his church, the positive impact he has had on the lives of others by providing a positive role model, and his continuing pursuit of educational opportunities.

13.  Title 10 of the United States Code, section 1552 as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

14.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 3 (Character of Service/Description of Separation), Section IV (Dishonorable and Bad Conduct Discharge) provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

15.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.
16.  Army Regulation 635-200, 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.  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.  The applicant's contention that his discharge should be upgraded because he was young and made poor decisions was carefully considered.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service during this time period.  The applicant's post-service conduct, personal commitment, and service to the community since his discharge were also carefully considered.  The applicant’s good post service conduct and achievements are commendable, but is not so meritorious as to warrant an upgrade of his discharge.

2.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.

3.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

4.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offense for which he was convicted, clemency would not be appropriate in this case.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___RTD__  ___MJF_  ____RML   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




  ___Richard R. Dunbar_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013880
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/03
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19821120
DISCHARGE AUTHORITY
AR 635-200, Chapter 3, Section IV
DISCHARGE REASON
As a Result off Court-Martial - Other
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.