RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070008637 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. John G. Heck

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 an upgrade of his discharge. 

2.  The applicant states that he was young and made a mistake with some of his peers.  He further adds that he has been out of the Army for almost 15 years and that he was told he should try to get his discharge upgraded. 

3.  The applicant did not provide any documentary evidence in support of his application.  

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 records show that he was born on 15 June 1971.  With prior service in the Army National Guard, he enlisted in the Regular Army, at the age of 19, on 21 November 1990.  He completed advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank he attained during his military service was private first class/pay grade E-3.

3.  The applicant's records show that he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  The applicant's records do not show any significant acts of valor during his military service.

4.  On 19 April 1991, the applicant was investigated by the New Jersey State Police for theft, conspiracy and shoplifting at the Fort Dix, New Jersey, Post Exchange.  The applicant agreed to return the stolen merchandise.

5.  On 7 September 1991, the applicant's brigade commander approved a Bar to Reenlistment Certificate against the applicant for writing dishonored checks.

6.  On 19 November 1991, the applicant pled guilty at a General Court-Martial to one specification of conspiring to steal and one specification of stealing a television set, four video cassette recorders, two air-conditioners, and a stereo, of total value of about $3,100, on or about 19 April 1991 and 12 June 1991.  The approved Court-Martial sentence was for confinement for six months, forfeiture of all pay and allowances, reduction to the grade of private/pay grade E-1, and discharge from the service with a Bad Conduct Discharge. 

7.  Subsequent to his confinement during the period 16 October 1991 through 16 March 1992, the applicant was discharged on 24 June 1992.  The DD Form 214 he was issued at the time of his discharge confirms he was discharged with a Bad Conduct Discharge as a result of Court-Martial, in accordance with chapter 3 of Army Regulation 635-200 (Personnel Separation).  This form further confirms that he completed a total of 1 year, 6 months, and 10 days of creditable active military service and 180 days of lost time due to confinement.

8.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 13-11, provides that a bad conduct discharge will be issued pursuant to an approved sentence of a General Court-Martial, after completion of the appellate review, and the sentence has been affirmed and ordered duly executed.

10.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he is entitled to an upgrade of his discharge.

2.  The applicant was 19 when he enlisted in the Regular Army and was almost 20 years old when he committed his offense.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will direct any changes if it is determined that the characterization of service or the reason for discharge were either improper or inequitable.

4.  The applicant’s military record indicates that his trial by General Court-Martial on 19 November 1991 was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jcr___  __jgh___  __qas___  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
AR20070008637
SUFFIX

RECON

DATE BOARDED
20071213
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19920624
DISCHARGE AUTHORITY
AR 635-200, Chap 3
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.