RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 December 2007
	DOCKET NUMBER:  AR20070008652 


	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. William D. Powers

Chairperson

Mr. Michael J. Flynn

Member

Ms. Sherry J. Stone

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 unwise during his military service and that he has paid a heavy price for his indiscipline.  He further adds that if he could do it all over again, he would do it differently.  He concludes that he has lived with this burden for the past 20 years and all he needs is to be able to get treatment from the Department of Veterans Administration (DVA). 

3.  The applicant did not provide any additional 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 28 January 1961 and enlisted in the Regular Army, at the age of 19, on 27 June 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16C (Hercules Fire Control Crew Member).  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 Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 5 May 1982, for disobeying a lawful order on 3 May 1982 and for sleeping while on duty on 3 May 1982.  His punishment consisted of reduction to the grade of private/pay grade E-2, forfeiture of $100 pay for one month, and 7 days of restriction.

	b.  On 16 June 1982, for abandoning his guard duty on 9 June 1982 and sleeping while on duty on 14 June 1982.  His punishment consisted of reduction to the grade of private/pay grade E-1 (suspended for 90 days), forfeiture of $100 pay for one month, and 14 days of restriction.

	c.  On 7 September 1982, for possessing marijuana in the hashish form on 14 June 1982 and using marijuana in the hashish form on 14 June 1982.  His punishment consisted of reduction to the grade of private/E-1, forfeiture of $250 pay for one month, and 21 days of restriction.

5.  On 11 January 1983, the applicant pled guilty at a General Court-Martial to one specification of driving at a high speed while drunk and striking and injuring another individual; one specification of driving without a license; one specification of attempting to distribute an unknown amount of controlled substance; and one specification of possessing half a gram of marijuana in the hashish form.  The Court sentenced the applicant to confinement at hard labor for 18 months, forfeiture of all pay and allowances, and discharge from the service with a bad conduct discharge. 

6.  On 3 August 1983, the Army Court of Military Review affirmed the findings and sentence.

7.  Subsequent to his confinement at the U.S. Army Correctional Activity, Fort Riley, Kansas, the applicant was discharged on 12 March 1984.  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 2 years, 7 months, and 25 days of creditable active military service and 380 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 because he is trying to get medical assistance through the DVA.

2.  The applicant’s military record indicates that his trial by General Court-Martial on 25 February 1983 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.

3.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant's DD Form 214 properly and accurately lists the type of separation, character of service, separation authority, separation code, reentry code, narrative reason of separation; and dates of lost time.

4.  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

__wdp___  __mjf___  __sjs___  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 D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070008652
SUFFIX

RECON

DATE BOARDED
20071211
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19840312
DISCHARGE AUTHORITY
AR 635-200, Chap 3
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
106.0008
2.

3.

4.

5.

6.