RECORD OF PROCEEDINGS


	IN THE CASE OF:	  .
  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070001630 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

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 that his bad conduct discharge be upgraded to general, under honorable conditions. 

2.  The applicant has not made any statement, other than to request an upgrade to his discharge.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 August 1992, the date of his discharge.  The application submitted in this case is dated 12 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.  On 28 July 1983, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 71P1O (Flight Operations Coordinator).  This MOS was later redesignated as 93P1O.

4.  On 1 April 1985, the applicant attained the rank of specialist four, pay grade E4.

5.  On 9 July 1990, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave.  The punishment included reduction to private first class, pay grade E3 and 30 days extra duty (20 days suspended).




6.  DA Form 4126 (Bar to Reenlistment Certificate) approved 11 September 1990, stated that the applicant freely admitted he no longer wished to continue his military career.  He refused to attend Primary Leadership Class and lacked leadership motivation.  He did not exhibit the high degree of order and discipline required for additional service.  The applicant did not appeal.

7.  On 6 December 1990, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (Charge I, Specification 1) for going, without authority, from his appointed place of duty on 30 November 1990; (Charge I, Specification 2) for going, without authority, from his appointed place of duty on 14 September 1990; Article 90 (Charge II, Specification 1) for offer of violence against a superior commissioned officer; (Charge II, Specification 2) for willful disobeyance of a lawful order from a superior commissioned officer; Article 91 (Charge III) for being disrespectful in language and deportment toward a superior noncommissioned officer.  

8.   On 11 March 1991, the applicant, before a military judge, pled guilty to Specification 1 of Charge I and not guilty to Specification 2 of Charge I.  He pled guilty to Charge I.  He pled guilty to Charge II and guilty to both of its specifications.  He pled guilty to Charge III and its Specification, except for the words "by refusing to respond to his orders and."  To the excepted words, he pled not guilty. 

9.  The military judge accepted the applicant's plea and found him guilty of all charges and specifications except for Specification 2 of Charge II and the excepted words in Charge III.  He sentenced the applicant to reduction to private, pay grade E1, total forfeitures, confinement for 13 months, and a bad conduct discharge.

10.  On 9 April 1991, the Staff Judge Advocate, in a written review for the convening authority, summarized the applicant's service record.  He recommended that the findings and sentence be approved, and, except for that part of the sentence extending to a bad conduct discharge, be ordered executed. 

11.  On 25 April 1991, the convening authority approved only so much of the sentence as provided for a reduction to private, pay grade E1, total forfeitures, confinement for 12 months, and a bad conduct discharge, and except for that part of the sentence extending to a bad conduct discharge, directed execution.



12.  On 30 January 1992, the United States Court of Military Review examined the case.  He contended that his plea of guilty to assaulting an officer was improvident.  The applicant asserted that during the providence inquiry he never disavowed a potential defense based on the victim's divesting himself of his officer status by his actions. The applicant also contended that the military judge erred when he found the applicant guilty of disobeying an officer.  The applicant based this contention on the assertion that the "ultimate offense" committed by the applicant's disobedience of the officer's order to return to work was failure to go at the time prescribed to his appointed place of duty.  The applicant's arguments were found to be without merit.  The findings of guilty and the sentence were affirmed.

13.  General Court-Martial Order Number 42, Headquarters, 7th Infantry Division (Light) and Fort Ord, Fort Ord, California 93941-5888, dated 27 July 1992, affirmed the sentence to a bad conduct discharge, confinement for 12 months, forfeiture of all pay and allowances, and reduction to private, pay grade E1, adjudged on 11 March 1991, as promulgated in General Court-Martial Order Number 13, Headquarters, 6th Infantry Division (Light) and the United States Army Garrison, Fort Wainwright, Alaska 99703, dated 25 April 1991.  That portion of the sentence pertaining to confinement had been served.  Article 71(c) having been complied with, the bad conduct discharge would be executed.  

14.  The applicant's Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was discharged on 19 August 1992 under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  He received a bad conduct characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the final discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  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 the aforementioned requirement.


3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 August 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
18 August 1995.  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

__ RWS__  __KSJ___  __CLG _  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.




__ Curtis L. Greenway    
      CHAIRPERSON




INDEX

CASE ID
AR20070001630
SUFFIX

RECON

DATE BOARDED
20070802
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19920819
DISCHARGE AUTHORITY
AR .635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
105.0000
2.

3.

4.

5.

6.