RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 July 2007
	DOCKET NUMBER:  AR20070001281 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John N. Sloane

Chairperson

Mr. William Blakely

Member

Mr. David K. Haasenritter 

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 his bad conduct discharge (BCD) be upgraded to a general or an honorable discharge.

2.  The applicant states, in effect, that his ability to serve was impaired by his youth and extreme immaturity.  His personal problems impaired his mental abilities to regard the seriousness of his career. 

3.  In an additional letter, the applicant states that he was raised by a military father who is now a retired sergeant major (SGM).  At the age of 17 and to avoid criminal prosecution, his father and CIA (Central Intelligence Agency [sic] Criminal Investigation Division) law enforcement officers persuaded him to sign up for the Army to avoid unwanted detention and personal embarrassment to his father.  He dropped out of high school, obtained his GED (General Equivalency Development) and signed papers with a recruiter who sent him off immediately.  

4.  After completing basic training, he was sent to AIT (advanced individual training) at Fort Gordon, Georgia.  Shortly after his arrival there he had serious personal problems that led to his mental instability and attempted suicide.  He was coerced by his drill sergeants into continuing rather than being medically discharged at that time.  Due to his youth and non-desire, this military career choice was not serious to him; therefore, he did not act appropriately because of his lack of understanding.  He had delayed his request for discharge upgrade consideration because he did not realize such was possible.  

5.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 25 January 1991, the date of his discharge.  The application submitted in this case is dated 14 January 2007.

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's military record shows he enlisted in the Regular Army on 3 March 1988, at the age of 17 years, 3 months, and 4 days.  His date of birth is 30 November 1970.  The applicant successfully completed basic combat training at Fort Jackson, South Carolina, and AIT at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 31C, Single Channel Radio Operator.  He was advanced to pay grade E-3 effective 1 January 1989.

4.  On 14 January 1989, the applicant tested positive for marijuana.

5.  On 1 March 1989, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for the wrongful use of marijuana on 14 January 1989. His punishment consisted of a reduction to E-1, a forfeiture of pay, 30 days restriction, and 45 days extra duty.

6.  The applicant was barred from reenlistment on 28 March 1989.

7.  On 4 May 1989, he was punished under Article 15, UCMJ, for failure to be at his appointed place of duty on 26 March 1989.  His punishment consisted of a forfeiture of pay (suspended) and 45 days extra duty.

8.  On 25 June 1989, the applicant again tested positive for marijuana.

9.  Charges were preferred against the applicant on 16 February 1990 for the wrongful use of marijuana, a controlled substance, and for wrongfully and unlawfully uttering 79 bad checks.

10.  On 10 January 1990, the applicant's charges were reviewed and he was recommended for trial by a general court-martial.   

11.  At a general court-martial on 20 March 1990, the applicant entered mixed pleas to numerous offenses under the UCMJ.  He was found guilty of wrongfully using marijuana on 25 June 1989 and guilty of uttering 40 of the 79 bad checks.  Charges related to the uttering of the first 39 bad checks were dismissed.  The military judge sentenced him to a forfeiture of all pay and allowances, confinement for 18 months, and a bad conduct discharge.

12.  On 27 July 1990, the United States Army Court of Military Review affirmed the findings and sentence.

13.  On 25 January 1991, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a BCD.  He had served 2 years and 12 days of creditable service and had 311 days of lost time due to confinement.

14.  The applicant's case is ineligible for review by the Army Discharge Review Board (ADRB) due to his conviction by a general court-martial.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 of that regulation provides 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 duly executed.

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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the number and gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulation.



2.  The evidence of record shows that the applicant was found guilty by a general court-martial of wrongfully using marijuana and of wrongfully and unlawfully uttering 40 bad checks.  He was also a recipient of two Article 15s, under the 
UCMJ, for wrongfully using marijuana and for failing to go to his appointed place of duty.  He was sentenced to and discharged with a BCD pursuant to the sentence of the general court-martial. 

3.  The applicant has provided no evidence to show that his discharge was unjust at the time of his offense.  He has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant stated that his ability to serve was impaired by his youth and extreme immaturity.  It is noted that he was 17 years, 3 months, and 4 days of age on the date of enlistment.  He was over the age of 18 when he committed his first violations of the UCMJ and was over the age of 20 on the date of his discharge.  The applicant's youth and immaturity is not an excuse in this case.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

5.  The applicant stated that his personal problems impaired his mental abilities to regard the seriousness of his career.  There is no evidence to show that he sought assistance for his personal problems during his period of service.  It is noted that had he informed his command of personal problems, he would have been referred to the appropriate service agencies to assist him with his problems, and with this assistance, could have prevented his BCD.

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

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 January 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 24 January 1994.  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

__S_____  __DKH___  __WB __  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 N. Sloane_____
          CHAIRPERSON




INDEX

CASE ID
AR20070001281
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070718
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19910125
DISCHARGE AUTHORITY
AR 635-200, chapter 3
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.