IN THE CASE OF:	  

		BOARD DATE:	        13 August 2008

		DOCKET NUMBER:  AR20080005326 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his bad conduct discharge to an honorable discharge. 

2.  The applicant states that he has lived the past 22 years with this type of discharge over his head and that it has kept him from getting a good job with insurance and benefits.  He also states that it is like a life sentence without the feeling of knowledge and security.  He acknowledges that there was no excuse for what he did; however, he questions how long must he suffer for actions he committed when he was 18 and asks the Board for mercy. 

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 17 September 1964 and enlisted in the Regular Army at the age of 18 for a period of 3 years on 26 April 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91A (Medical Specialist).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  

3.  The applicant’s awards and decorations include the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any achievements or significant acts of distinction during his military service.

4.  On 13 June 1984, the applicant pled guilty at a Special Court-Martial to the charge and specification of stealing a motorcycle of a value of about $300.00, the property of another Soldier, on or about 20 March 1984.  The Court also found him guilty of the charge and specification and sentenced him to a bad conduct discharge, confinement at hard labor for 45 days, forfeiture of $396.00 pay per month for 3 months, and reduction to the lowest enlisted grade.  The sentence was adjudged on 13 June 1984.

5.  On 27 July 1984, the convening authority approved only so much of the sentence as provides for a bad conduct discharge, confinement at hard labor for 45 days, forfeiture of $396.00 pay for 2 months, and reduction to the lowest enlisted grade, and except for the part of the sentence that extended to a bad conduct discharge, he ordered it executed.   He also ordered the record of trial forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined at the Naval Brig, Newport, Rhode Island.

6.  On 15 October 1984, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  Headquarters, Fort Devens, Massachusetts, Special Court-Martial Order Number 20, dated 26 November 1984, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

8.  The applicant was discharged from the Army on 26 November 1984.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged in accordance with chapter 3 of 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 1 year, 5 months, and 26 days of creditable military service.  He also had 39 days of lost time due to confinement. 

9.  On 5 May 1989, the Army Discharge Review Board (ADRB) denied the applicant’s request for a change in the character and/or reason of his discharge.

10.  On 9 August 1990, the Army Board for Correction of Military Records denied the applicant’s request for an upgrade of his bad conduct discharge to general.  

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 (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.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record shows that the applicant was 18 years of age at the time of his enlistment and nearly 19 years of age at the time of his offense.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of misconduct was the result of his age.

3.  The applicant’s trial by a Special Court-Martial was warranted by the gravity of the offense 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.  The applicant’s discharge accurately reflects his military service at that time.

4.  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.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005326



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ABCMR Record of Proceedings (cont)                                         AR20080005326



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