RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 May 2007
	DOCKET NUMBER:  AR20060015775 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Crain

Chairperson

Mr. Donald Lewy

Member

Mr. Roland Venable

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 be granted in the form of an honorable discharge.

2.  The applicant states, in effect, that he served his entire career in an outstanding manner.  He states the Army was throwing him away with what he thought was no future, so he faked his death to care for his family.  He contends that it was a one time desperate act.

3.  The applicant provides letters of recommendation; letters of appreciation; nine character reference letters, dated 1996 and 1993; four award certificates for the Army Achievement Medal; one award certificate for the Army Commendation Medal, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 27 July 1994.  The application submitted in this case is dated 28 November 2006.

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.  The applicant enlisted on 23 February 1982 and trained as a combat engineer.  He remained on active duty through continuous reenlistments and attained the rank of sergeant effective 1 December 1989.

4.  On 25 July 1991, a Military Occupational Specialty/Medical Retention Board determined that the applicant’s physical condition (chronic foot pain) prevented him from performing his duties as a combat engineer and recommended that he be referred to a Medical Evaluation Board. 

5.  On 29 March 1993, in accordance with his pleas, the applicant was convicted by a general court-martial of attempting to steal $450,000 from insurance companies and of desertion.  He was sentenced to be reduced to E-1 and to be discharged from the service with a bad conduct discharge.  On 30 July 1993, the convening authority approved the sentence.

6.  The decision of the U.S. Army Court of Criminal Appeals is not available.  Although the convening authority’s promulgating order, dated 16 June 1994, shows that all required appellate reviews were conducted.  This order directed the execution of the BCD.  This order also states the sentence was affirmed.  

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 27 July 1994 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  He had served a total of 12 years, 5 months, and 5 days of total active service.  His DD Form 214 does not show any lost time.   
 
8.  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 bad conduct 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. 

9.  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.

10.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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, an experienced Soldier, was discharged with a bad conduct discharge for attempting to steal $450,000 from insurance companies and for desertion.  As a result, his record of service was not satisfactory and 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.

2.  Records show the applicant should have discovered the alleged injustice now under consideration on 27 July 1994; therefore, the time for the applicant to file a request for correction of any error expired on 26 July 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

WC____  __DL____  __RV___  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.


____William Crain_____
          CHAIRPERSON




INDEX

CASE ID
AR20060015775
SUFFIX

RECON

DATE BOARDED
20070531
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19940727
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.