RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  25 September 2007
	DOCKET NUMBER:  AR20070005142 


	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. Phyllis B. Mackey 

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Ms. LaVerne Douglas

Member

Mr. Jerome Pionk

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, to have his bad conduct discharge, characterized as under other than honorable conditions (UOTHC), changed to honorable.  

2.  The applicant states, in effect, that he was told at his discharge proceedings that his discharge, characterized as UOTHC, would be automatically changed to honorable, in one year, based on his prior good service. 

3.  In support of his request, the applicant provided, two DD Forms 214 dated 
8 December 1970, and 6 November 1974.  

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, and 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 was inducted in the United States Army on 9 December 1968.  He successfully completed basic combat training at Fort Bragg, North Carolina, and his advanced individual training at Fort Dix, New Jersey.  On completion of his advanced training, he was awarded the MOS (military occupational specialty) 94B, Cook.   He was honorably released from active duty on 8 December 1970.  He had a break in service and reenlisted on 6 November 1974. 

3.  During his service in 1974 his records show that he had several periods of AWOL (absence without leave) and was in confinement for a period of 100 days. Together this lost time amounted to 124 days.

4.  The applicant’s records show that he received nonjudicial punishment under the provisions of Article 15, UCMJ (Uniform Code of Military Justice), for being AWOL and other misconduct on several occasions. 

5.  On 2 April 1970 the applicant was punished under Article 15, UCMJ for being AWOL from his appointed place of duty, from 29 March 1970 to 30 March 1970, and for attempting to defraud the government, by offering an invalid Individual Sick Slip (DD Form 689), authorizing him to be on quarters, on 29 March 1970.  His punishment consisted of a forfeiture of $50.00 from his monthly pay for one month, suspended for 60 days.  He was placed on restriction for 60 days to his appointed place of duty; an appointed dining facility and the chapel of choice for scheduled services.  He did not appeal this punishment.

6.  On 5 April 1976, the applicant was found guilty and was convicted by a special court-martial of wrongfully having in his possession a habit forming narcotic drug and for larceny, the property of the Armed Forces European Exchange System, on 29 January 1976.  He was sentenced to confinement at hard labor for 4 months; forfeiture of $100.00 per month for 4 months; a BCD (bad conduct discharge), and reduction to Private/E-1.  The sentence was adjudged on 5 April 1976 and approved on 30 June 1976.  On 23 February 1977, the U.S. Army Court of Military Review affirmed the findings and sentence.  On
5 July 1977, the U.S. Army Court of appeals denied the applicant’s petition for review.  On 20 July 1977, the convening authority ordered the BCD executed.
 
7.  Item 21 (Time Lost), of his DA Form 2-1, shows that he was confined from 
5 April 1976 to 13 July 1976 (100 days); was AWOL from 30 July 1976 to 
8 August 1976 (10 days); was AWOL from 6 September 1976 to 16 September 1976 (11 days) and was AWOL from 2 December 1976 to 5 December 1976 
(4 days).   

8.  On 18 August 1977, the applicant was discharged from the Army pursuant to the sentence of a special court-martial and was issued a BCD, with his service erroneously characterized as UOTHC.  He had served 8 years, 4 months and
7 days of creditable service and 124 days of lost time due to AWOL and confinement.  

9.  Even though the applicant had two honorable discharges from prior enlistments, the BCD was based solely on his conduct during the last enlistment period.

10.  There is no evidence in the applicant’s records and the applicant has provided none, to show that he applied to the ADRB (Army Discharge Review Board) for an upgrade of his discharge within its 15-year statue of limitations. 


11.   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.  

12. Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  UOTHC discharges are warranted when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Military Services, or when the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Military Services.
 
13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under other than 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.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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.  

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 regulation.

2.  The evidence of record shows that the applicant was convicted by a special court-martial and sentenced to a BCD.  This characterization of his service was based on his conviction of wrongfully having a narcotic drug and larceny of property belonging to the Armed Forces European Exchange System.  The Army, by erroneously characterizing the applicant’s service as UOTHC instead of a BCD, inadvertently upgraded the applicant’s discharge.  

3.  The applicant was discharged pursuant to sentence of a special court-martial and was issued a BCD, when the sentence to a BCD was affirmed.

4.  The applicant has provided no evidence of post-service accomplishments or conduct upon which his misconduct and service can be mitigated and upon which an upgrade of his discharge can be based.

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

6.  Contrary to the applicant's assertions that he was told at his discharge proceedings that his discharge would be upgraded in one year based on his prior good service, the Army does not have, nor has it ever had, a policy to automatically upgrade discharges.

7.  Soldiers are advised at the place of their separation that it is their responsibility for requesting an upgrade (must submit application to the Army Discharge Review Board (ADRB)), if they receive less than an honorable discharge.  When an application for the upgrade of a discharge is received, each case is decided on its own merits.  A change may be warranted if the ADRB determines that the characterization of service or the reason for discharge or both were improper or inequitable.
  
8.  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

__WP____  __LD___  __JP____  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.




_____ William Powers        _____
          CHAIRPERSON




INDEX

CASE ID
AR20070005142
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070925
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.