RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 March 2008
	DOCKET NUMBER:  AR20070013804 


	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. Judy Blanchard

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Edward E. Montgomery

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, an upgrade of his Bad Conduct Discharge (BCD), so that he can sign up for the Army National Guard.  

2.  The applicant states, in effect, that he has been out of the Army for 28 years and has worked as a civil servant for 27 years.  He is applying for advancement and wishes to join the Army National Guard.  He believes the BCD that he received hinders him from advancement on his job and the ability to reach his full potential.

3.  The applicant provides character references 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.  On 10 February 1981, the applicant enlisted in the Regular Army.  He completed the required training and was awarded military occupational specialty (MOS) 31M (Multichannel Communication Equipment Operator).  The highest grade he attained was pay grade E-4. 

3.  On 3 April 1984, the applicant pled guilty before a military judge sitting alone as a Special Court-Marital convened by Headquarters 21st Support Command APO New York for the offenses of stealing another Soldier’s identification card, using the card to open a checking account under that Soldier’s name and twelve specifications of forging checks.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for a period of 4 months, to pay a fine to the United States Government in the sum of $2,000.00 and to be discharged from the United States Army with a BCD.  On 5 July 1984, the convening authority approved the sentence.  

4.  On 18 October 1984, the United States Army Court of Military Review approved the findings of guilty and the sentence was affirmed.  On 24 January 1985, after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed.  There is no evidence that the applicant petitioned the United States Court of Military Appeals for a grant of review.  

5.  On 27 February 1985, the applicant was discharged under the provisions Army Regulation 635-200, Chapter 3, Sec IV as a result of a court-martial with a BCD.  He had completed 3 years, 9 months and 7 days of creditable active military service.  

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, in effect at the time, provided the policies and procedures for separating members with a dishonorable or bad conduct discharge.  It stipulated that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

7.  Title 10 of the 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in supporting the requested relief.  

2.  The applicant’s third party letters and contentions regarding his good post service conduct and achievements were carefully considered.  The applicant’s good post service conduct is commendable, but is not so meritorious as to warrant an upgrade of his discharge. 

3.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and his rights were protected throughout the court-martial process.  There is no evidence in the applicant’s record nor has he presented any evidence to warrant the requested relief.

4.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offenses for which he was convicted, clemency would not be appropriate in this case.  

5.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

6.  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 this requirement.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___YM___  ___SP___  __EM____  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.





____Shirley L. Powell________
          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.