RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  13 December 2007
	DOCKET NUMBER:  AR20070008931 


	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. John 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 that his bad conduct discharge (BCD) be upgraded.

2.  The applicant states, in effect, that his BCD should be upgraded in order to be eligible for receipt of all benefits justly earned and deserved through service rendered to his country.  He was set up by a so-called friend who was busted by undercover "narcs."  Unknowingly, he had nothing to do with it, except to be used by his so-called friends; benefit of less time for his wrong doing.  The applicant believes he was merely a scapegoat and not an accessory. 

3.  The applicant provides no documentation in support of his request.

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 4 December 1984.  He successfully completed basic combat training and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 12F, Engineer Tracked Vehicle Crewman.

3.  On 13 January 1986, the applicant was punished under Article 15, under the UCMJ (Uniform Code of Military Justice), for the wrongful use of marijuana.  His punishment consisted of reduction to pay grade E-1, a forfeiture of $319.00 for 2 months, and 45 days restriction (suspended for 90 days), and 45 days extra duty.

4.  On 1 May 1986, the applicant was barred from reenlistment.


5.  At a special court-martial on 2 July 1986, the applicant entered mixed pleas to numerous offenses under the UCMJ.  He was found guilty of disobeying a lawful order from a noncommissioned officer (NCO); for being disrespectful in language toward an NCO on two occasions; for violation of a lawful general regulation, by wrongfully having an alcoholic beverage in his possession while operating a motor vehicle under the age of 21; for reckless driving; and for wrongful distribution of marijuana on 13 December 1985.  His sentence consisted of confinement for 3 months, a forfeiture of pay of $426.00 pay per month for 3 months, and a BCD.  The sentence was approved and except for the BCD, was ordered executed.  

6.  On 8 May 1987, the United States Army Court of Military Review affirmed the findings and sentence.

7.  On 10 September 1987, the special 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. 

8.  On 6 October 1987, the applicant was discharged from the Army pursuant to the sentence of a special court-martial and was issued a BCD.  He had served 2 years, 7 months, and 19 days of creditable service and had 75 days of time lost due to confinement. 

9.  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.

10.  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.

11.  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.

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 that the applicant was found guilty by a special court-martial of disobeying a lawful order from a NCO, of being disrespectful in language toward an NCO on two occasions, of violation of a general regulation, for reckless driving, and of the wrongful distribution of marijuana on 13 December 1985.  He was also the recipient of one Article 15, under the UCMJ, and was barred from reenlistment.  He was sentenced to and discharged with a BCD pursuant to the sentence of the special court-martial. 

3.  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.

4.  The applicant's allegations, in effect, that he was set-up by a so-called friend, who was busted by undercover "narcs;" that he had nothing to do with this crime, except to be used by his so-called friend; and that he was a scapegoat, not an accessory, were considered; however, they do not support an upgrade of his BCD. 

5.  The applicant contends that his BCD should be upgraded in order for him to qualify to receive Department of Veterans Affairs (VA) benefits.  The applicant is, it appears, ineligible for VA benefits due to his BCD; however, he is encouraged to seek the counsel of a VA representative for a determination.

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his BCD in order to qualify to receive VA benefits.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___QS___  __JH____  __JR___  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
AR20070008931
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071213
TYPE OF DISCHARGE
BCD
DATE OF DISCHARGE
19871006
DISCHARGE AUTHORITY
AR 635-200, chap 3. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.