RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070003843 


	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. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

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 an honorable discharge under medical conditions.

2.  The applicant states, in effect, that the penalty was too harsh and the stress from his mother's untimely murder and severe pain from his back problems were causing him mental stress.  In addition, he states he had to take on the responsibility of caring for his younger brother and sister after his mother's death as well as his own family. 

3.  The applicant provides no additional documentation in support of his request  although he refers to his Army medical records, which he believes are located at Army HRC (Human Resources Command) and the VA (Veterans Administration). 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army on 10 May 1989.  The applicant successfully completed basic combat training and advanced individual training at Fort Benning, Georgia. On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS) 11B, Light Weapons Infantryman.  He was promoted to sergeant (SGT/E-5) on 1 April 1993.

3.  At a general court-martial on 12 October 1994, the applicant was found guilty of committing larceny of military property, wrongfully appropriating military property, violating a general regulation on two occasions, and selling military property.  His adjudged sentence consisted of a reduction to pay grade E-1, a forfeiture of $250.00 pay per month for 24 months, confinement for 2 years, and a BCD.   Only so much of the sentence as provided for reduction to pay grade   E-1, a forfeiture of $250.00 pay per month for 2 years, confinement for 16 months, and a BCD was approved by the general court-martial convening authority.  Service of the sentence to confinement was deferred until 5 December 1994.

4.  On 20 February 1996, the United States Army Court of Criminal Appeals affirmed the findings and the sentence.

5.  On 14 August 1996, the general court-martial convening authority directed that the BCD be duly executed after that portion of the sentence pertaining to confinement had been served and the provisions of Article 71(c) had been complied with. 

6.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record – Part II), shows that he was confined from 5 December 1994 to 30 November 1995 (361 days) as a result of the general court-martial. 

7.  On 20 November 1996, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a BCD.  He had served 6 years, 6 months, and 15 days of creditable service and had 361 days of lost time due to being in confinement.

8.  There is no evidence that the applicant requested a separation medical examination and his medical records are unavailable for review.  Testimony to support his contention he was under stress due to his mother's murder and it contributed to his misconduct was presented at his court-martial and after his trial by letters written to the general court-martial convening authority.  Therefore, this evidence was taken into consideration in determining both the applicant's adjudged and approved sentences.

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

10.  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.

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.

12.  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.

13.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), Chapter 4, paragraph 4-1, states, in pertinent part, that Soldiers charged with an offense under the UCMJ or who are under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for or continue disability processing unless: a.)  the investigation ends without charges; b.) the officer exercising proper court-martial jurisdiction dismisses the charges; and c.) the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

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 the applicant was found guilty by a general court-martial of committing the larceny of military property, wrongfully appropriating military property, violating a general regulation on two occasions, and selling military property.  He was 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 offenses.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The applicant stated that his BCD should be upgraded to an honorable discharge under medical conditions.  


5.  There is no available evidence, and the applicant provided none, to show that he had been referred to the Army's physical disability system for evaluation of a medical condition or for any form of disability processing prior to his BCD.  The evidence is void of any indication that during his military service he was determined to be unfit because of a physical disability.

6.  The evidence shows that the applicant was charged with offenses under the UCMJ for which he was separated with a punitive discharge.  AR 635-40 is clear that such a Soldier may not be referred for or continue disability processing; therefore, the applicant could not have been referred for disability processing unless he had been acquitted at trial.  

7.  The applicant alleges that his discharge was too harsh.  A bad conduct discharge is a severe punishment that is adjudged by a court-martial when it determines a Soldier has engaged in bad conduct.  The applicant's conduct resulting in the offenses for which he was convicted, warranted this punishment.

8.  The applicant alleges that stress from his mother's untimely murder and severe pain from back problems caused him mental stress and thereby contributed to his misconduct.  However, he has provided no evidence of his back problems, and there is none otherwise available to the Board, to support his allegations.  His medical records are unavailable for review to show that he had any type of medical condition which would have contributed to his mental stress. 

9.  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.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___QS___  ___DC__  __JCF __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____Jeffrey C. Redmann____
          CHAIRPERSON




INDEX

CASE ID
AR20070003843
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070920
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19961120
DISCHARGE AUTHORITY
AR 635-200, chap 3. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.