RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  11 March 2008
	DOCKET NUMBER:  AR20070013333 


	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. Frank C. Jones, II

Chairperson

Ms. Carmen Duncan

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 an upgrade of his discharge.

2.  The applicant states that he was 18 years old at the time of his enlistment and that his court-martial marked his first time dealing with any legal and criminal issues.  He states he has matured and wishes to join the U.S. Army Reserve or the Army National Guard.  In a lengthy self-authored statement, he restates his military history, to include:  his initial enlistment; his enlistment extension to meet command sponsorship requirements for an overseas tour; and some of the challenges he faced during his duty at Schofield Barracks, Hawaii.  Specifically, the applicant presents the following arguments:

a.  The court-martial was his first encounter with any criminal or legal proceedings and he was not aware of the seriousness of the situation and may not have fully understood his rights at the time;

b.  Had he not gone absent without leave (AWOL), the forgery charge would have been dropped, and the bad check charge dismissed given that he made restitution to the post exchange for the amount taken and service fees incurred, and the false swearing charge would have ended in an acquittal after the investigation was completed;

c.  He does not remember being read a Miranda warning [i.e., an Article 31(b), Uniform Code of Military Justice (UCMJ), rights warning] upon being taken into custody;

	d.  He served several more days than his original enlistment term as of the date he went AWOL and eventually served his entire 5 month extension to his enlistment term, even though his chain of command previously wanted him to separate from active duty earlier than his scheduled expiration of term of service (ETS) date; and 

e.  He made marriage and mental health counseling appointments, but his chain of command did not allow him to keep them due to pending deployments.  As a result of his command's callous actions, which he perceived as unfair treatment, he became angry and rebellious against his command.


3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 3 April 1985;

	b.  DA Form 1695 (Oath of Extension of Enlistment), dated 10 April 1986;

	c.  DA Form 4126-R (Bar to Reenlistment Certificate), dated 10 June 1987;

	d.  Statement for DEERS Enrollment and Dependent Identification Card, dated 22 September 1988;

	e.  DA Form 2627 (Record of Proceedings Under Article 15 of the UCMJ), dated 25 February 1988;

	f.  DA Form 268 (Report for Suspension of Favorable Actions), dated 3 March 1988;

	g.  DA Form 268, dated 22 April 1988;

	h.  Headquarters, 25th Infantry Division (Light), Schofield Barracks, Hawaii, Special Court-Martial Order Number 20, dated 15 September 1988;

	i.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 26 April 1989;

	j.  Self-authored statement, dated 9 September 2007.

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 5 March 1967 and enlisted in the Regular Army at the age of 18 on 3 April 1985 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).  The highest rank and grade he attained during his military service was specialist four (SP4)/E-4.

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

4.  On 10 June 1987, the applicant's company commander initiated a Bar to Reenlistment Certificate citing the applicant's unsatisfactory performance and apathetic attitude towards being disciplined.  On 12 June 1987, the applicant's battalion commander approved the Bar to Reenlistment.

5.  The applicant's records reveal a disciplinary history, which includes his acceptance of nonjudicial punishment (NJP) under Article 15, UCMJ, as follows:

	a.  On 7 May 1987, for disobeying a lawful order from a noncommissioned officer on 23 April 1987 and for being disrespectful in language towards a noncommissioned officer.  His punishment consisted of a reduction to the rank and grade of private first class (PFC)/E-3 and 14 days of restriction; 

	b.  On 7 October 1987, for disobeying a lawful order from a commissioned officer, on or about 11 September 1987, and being disrespectful in language towards a noncommissioned officer, on or about 28 September 1987.  His punishment consisted of a reduction to the rank and pay grade of private (PV2)/E-2 (suspended until 7 April 1988), a forfeiture of $172.00 pay for 1 month (suspended until 7 April 1988), 7 days of restriction, and 14 days of extra duty; and 

	c.  On 25 February 1988, for failing to go to his appointed place of duty on or about 19 February 1988 and 22 February 1988; for being derelict in the performance of his duties on or about 18 January 1988; for making two false statements to two noncommissioned officers on or about 18 January 1988; for changing an official record with intent to deceive on 11 February 1988; for signing a false official statement on 19 January 1988; and for writing a check with insufficient funds on or about 22 December 1987.  His punishment consisted of reduction to the rank and grade of private/E-1, 45 days of extra duty, and 45 days of restriction.

6.  On 10 August 1988, at a special court-martial, the applicant pled guilty to the following charges:

	a.  Charge I – one specification of being AWOL from 
13 April 1988 to 27 June 1988; and

	b.  Charge II, one specification of false application for a Dependent Identification Card on 17 November 1987.

7.  During the same special court-martial, the applicant pled not guilty to the following charges:

	a.  Charge III – one specification of theft of $200 from 15 March 1988 to 10 April 1988 (this Charge was withdrawn by the Government after arraignment); 

	b. Charge IV, one specification of writing bad checks from 7 December 1987 to 30 December 1987; and 

	c.  Charge V, one specification of false swearing on 18 February 1988.

8.  The Court withdrew Charge III and its specifications (theft) after arraignment, but found him:

	a.  Guilty to Charge I – one specification of being AWOL; Charge II – one specification of false application for Dependent Identification Card; and Charge IV, one specification of writing bad checks, by exceptions and substitutions; and

	b.  Not Guilty to Charge V and its specification.

9.  The Court sentenced the applicant to a Bad Conduct Discharge, confinement for 6 months, and a forfeiture of $447.00 pay per month for 6 months.  The sentence was adjudged on 10 August 1988.

10.  The applicant was transferred to the United States Army Correctional Activity (USACA), Fort Riley, Kansas for service of his sentence to confinement.

11.  On 15 September 1988, the convening authority approved the applicant's sentence, and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review. 

12.  On 14 October 1988, the applicant underwent a mental status evaluation and a medical examination that cleared him for separation.

13.  Headquarters, USACA, Special Court-Martial Order Number 104, dated 23 November 1988, ordered the unexecuted portion of the applicant's approved sentence to confinement to be remitted pending appellate review. 

14.  On 18 January 1989, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

15.  Headquarters, USACA, Special Court-Martial Order Number 54, dated 18 April 1989, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the Bad Conduct Discharge executed. 

16.  The applicant was discharged from the Army on 26 April 1989.  His DD Form 214 shows he was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations) as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that he completed 3 years, 5 months, and 11 days of creditable military service.  He also had 223 days of lost time, 75 days of which was due to being AWOL and 148 days was due to being in confinement. 

17.  On 3 March 1995, the Army Discharge Review Board reviewed the applicant's military records and all other available evidence and denied his request for an upgrade of his discharge.  

18.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  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.

20.  Court-Martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of 
Military Records is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Records show that the applicant was 18 years of age at the time of his enlistment and 19 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, 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.  Evidence of record shows that the applicant had a history of misconduct; including a bar to reenlistment, three NJPs, and a special court-martial.  His trial by a special 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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

4.  The applicant has not shown that he was not properly advised of his rights; therefore, regularity is presumed.  Furthermore, the applicant was represented at trial by a qualified legal officer of the Army Judge Advocate General's Corps and member of the United States Army Trial Defense Service.  There is no evidence of ineffective counsel or that he was unaware of all of his rights.

5.  After a review of the applicant’s entire record of service, it is clear that his service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__fcj___  __cd____  __swf___  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.



							Frank C. Jones, II
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.