RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 November 2007
	DOCKET NUMBER:  AR20070007638 


	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. John T. Meixell

Chairperson

Ms. Jeanette R. McCants

Member

Mr. Scott W. Faught

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 be upgraded to honorable. 

2.  The applicant states that he is a minister now and wants to upgrade his discharge.

3.  The applicant provides no additional documentation. 

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.  On 27 October 1980, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 31V1O (Tactical Communications Systems Operator/Mechanic).

3.  On 24 April 1981, the applicant was assigned for duty as a vehicle driver with the 2nd Battalion, 33rd Field Artillery Regiment, in the Federal Republic of Germany. 

4.  On 10 September 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from on or about 16 to 31 August 1981.  The punishment included a forfeiture of $100.00 pay per month for one month (suspended) and 14 days extra duty.




5.  On 8 December 1981, the applicant accepted NJP for falsifying another person’s check; for issuing checks with insufficient funds in the bank; and for being AWOL from on or about 23 to 29 November 1981.  The punishment included reduction to private (pay grade E-1), 30 days extra duty, and 7 days restriction.

6.  On 24 December 1981, the applicant’s commander recommended that he be barred to reenlistment.  The commander stated that the applicant’s performance was unbecoming that of a Soldier in the United States Army; that he had a lackadaisical attitude; that he wrote worthless checks; and that he had one incident of forgery.  The applicant did not submit a statement on his own behalf.  The appropriate commander approved the bar to reenlistment on 29 December 1981.

7.  On 15 June 1982, the applicant accepted NJP for twice failing to go to his prescribed place of duty at the time prescribed, and for being in the wrong uniform at morning formation.  The punishment included a forfeiture of $100.00 pay per month for 1 month (suspended) and 7 days extra duty.  On 7 July 1982, the suspended punishment of $100.00 forfeiture of pay was vacated. 

8.  A charge was preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 134 (three specifications) for the wrongful possession, sale, and transfer of marijuana in hashish form on or about 3 August 1982.  

9.  On 30 September 1982, the applicant, before a military judge, pled guilty to the charge and all specifications, with exception and substitutions to the specified number of wrapped pieces of marijuana in hashish form. 

10.  The military judge accepted the applicant's plea.  He dismissed two of the specifications and found him guilty only of specification two for selling marijuana in hashish form.  He sentenced the applicant to confinement at hard labor for 
125 days, forfeiture of $367.00 pay per month for 4 months, and a bad conduct discharge.

11.  On 8 November 1982, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 100 days, and forfeiture of $367.00 pay per month for 4 months. The convening authority further directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and that the applicant be confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas, or elsewhere as competent authority might direct.

12.  Special Court-Martial Order Number 631, United States Army Correctional Activity, Fort Riley, Kansas, dated 15 December 1982, remitted the unexecuted portion of the approved sentence to confinement at hard labor for 100 days, effective 8 December 1982.

13.  On 9 February 1983, the United States Army Court of Military Review examined the case and found the findings of guilty and sentence as approved by proper authority correct in law and fact; it determined, on the basis of the entire record, that they should be approved.  The findings of guilty and the sentence were affirmed.

14.  Special Court-Martial Order Number 577, Headquarters, United States Army Correctional Activity, Fort Riley, Kansas, dated 16 September 1983, stated that the sentence to a bad conduct discharge, confinement at hard labor for 100 days, forfeiture of $367.00 pay per month for 4 months, adjudged on 30 September 1982, had been finally affirmed.  Article 71(c) having been complied with, the sentence, as thus modified, was executed.  

15.  The applicant's DD Form 214 shows that he was discharged on 5 October 1983, under the provisions of Army Regulation 635-200, due to special court-martial.  He received a bad conduct characterization of service and was issued a Bad Conduct Discharge Certificate.

16.  On 16 April 1984, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

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.  The applicant has not provided sufficient evidence or convincing argument to support his request to upgrade his discharge.

3.  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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __JRM __  __SWF__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





__     John T. Meixell______
          CHAIRPERSON




INDEX

CASE ID
AR20070007638
SUFFIX

RECON
 
DATE BOARDED
 
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19831005 
DISCHARGE AUTHORITY
AR 635-200 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110
2.

3.

4.

5.

6.