IN THE CASE OF:
BOARD DATE: 23 October 2008
DOCKET NUMBER: AR20080008893
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 that his Bad Conduct Discharge (BCD) be upgraded.
2. The applicant states, in effect, that his discharge was based on one isolated incident in a 72 month military career. He adds that he had no other adverse action taken against him. He believes that a lot of facts were left out and that there was other evidence that should have been presented during his court-martial.
3. The applicant does not provide any additional documents 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 23 April 1981, was awarded the military occupational specialty of personnel administration specialist, and was promoted to pay grade E-4.
3. While serving as a personnel and administration center clerk in Berlin Germany, on 10 April 1985 the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice for dereliction in the performance of his duties in that he failed to be on the Berlin duty train as the battalions courier to deliver and receive mail and other classified material.
4. On 5 February 1987, the applicant was convicted according to his plea by a General Court-Martial for wrongfully stealing certain mail matter, to wit: various cards, letters, and checks addressed to various persons. The applicants sentence consisted of a reduction to pay grade E-1, a forfeiture of all pay and allowances, confinement for one year, and a BCD.
5. On 29 April 1987, the United States Army Court of Military Review affirmed the findings of guilty and the sentence.
6. Accordingly, on 15 December 1987, the applicant was discharged as a result of court-martial with a characterization of service of bad conduct.
DISCUSSION AND CONCLUSIONS:
1. Contrary to the applicants contention, the misconduct which led to his BCD was not the only misconduct recorded in his military record. The applicant had accepted NJP.
2. The applicants NJP was for missing a duty train to pick up and deliver the battalions mail. As such, the applicant held a position of trust when it came to the battalions mail.
3. In view of the applicants duties, his harsh sentence is understandable. He stole mail which he was responsible for guarding and transporting. Stealing the mail he was entrusted to transport was a violation of trust.
4. Although the applicant states that a lot of facts and other evidence were not presented at his trial by court-martial, he does not state what that evidence entails. However, the time to have presented those facts and that evidence would have been at the trial.
5. In view of the foregoing, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X_____ ___X____ ___X___ 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.
_______ _ X _______ ___
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.
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