IN THE CASE OF:	  

		BOARD DATE:	       13 November 2008

		DOCKET NUMBER:  AR20080010003 


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 be upgraded to honorable.

2.  The applicant states, in effect, that he served his time and even tried to reenlist during the last military action but was told he was too old.  He believes that his punishment for arguing with his sergeant was too harsh and that he would be a stronger citizen without the burden of this discharge.

3.  The applicant provides a copy of a letter from his attorney regarding the sale of his house and disposition of funds.

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 29 July 1980, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 12C (Bridge Crewman).  

3.  On 15 September 1980, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully communicating a threat to another Soldier.  The punishment included a forfeiture of $104.00 pay per month for 1 month and 14 days of restriction and extra duty.

4.  On 20 November 1980, the applicant was assigned for duty as a power boat operator at Fort Carson, Colorado.  On 1 January 1982, the applicant was promoted to private first class, pay grade E-3.

5.  On 19 January 1982, the applicant accepted NJP for being absent without leave (AWOL).  The punishment included a forfeiture of $100.00 pay per month for one month and 14 days of extra duty.

6.  On 25 January 1982, the applicant accepted NJP for being AWOL.  The punishment included reduction to pay grade E-2, forfeiture of $144.00 pay per month for 1 month, and 14 days of restriction and extra duty.

7.  On 14 May 1982, charges were preferred against the applicant under the UCMJ.  Charge I was for violation of Article 91 (three specifications) for willfully disobeying a lawful order and (one specification) for assaulting [pushing] a noncommissioned officer who was in the execution of his office.  Charge II was for violation of Article 134 (one specification) for wrongfully and unlawfully offering the charge of quarters a bag of marijuana as compensation for services to be rendered.

8.  On 9 June 1982, the applicant accepted NJP for willfully disobeying a lawful order to not ride his motorcycle on post until he had attended the post safety class, was licensed, and had the motorcycle registered and insured.  The punishment included reduction to pay grade E-1, forfeiture of $128.00 pay per month for 1 month, and 14 days of extra duty.

9.  On 14 June 1982, before a military judge at a Special Court-Martial, the applicant pled guilty to all charges and specifications pursuant to a pretrial agreement.

10.  The military judge found him guilty of all charges and specifications.  The court sentenced him to reduction to pay grade E-1, forfeiture of $367.00 pay per month for 3 months, confinement at hard labor for 3 months, and a bad conduct discharge.
11.  On 20 July 1982, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate recommended approval of the sentence and, except for the part of the punishment extending to a bad conduct discharge, recommended that it be executed.

12.  On 27 July 1982, the convening authority approved the sentence and ordered it executed, except for that part extending to a bad conduct discharge.

13.  On 28 March 1983, the U.S. Army Court of Military Review found the approved findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

14.  On 2 September 1983, the U.S. Court of Military Appeals denied the applicant's petition for review of the decision of the U.S. Army Court of Military Review.

15.  Special Court-Martial Order Number 191, U.S. Army Armor Center and Fort Knox, Kentucky, dated 22 September 1983, provided that the sentence to a bad conduct discharge, forfeiture of $367.00 pay per month for 3 months, confinement at hard labor for 3 months, and reduction to pay grade E-1 had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.

16.  The applicant's DD Form 214 shows that he was discharged on 17 October 1983 under the provisions of Army Regulation 635-200, chapter 3, section IV, and he received a bad conduct characterization of service.

DISCUSSION AND CONCLUSIONS:

1.  Trial by 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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The applicant’s contention that his punishment was too harsh is not substantiated by any evidence of record.  Furthermore, he has not provided any convincing evidence or argument to support his contention.

3.  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 the aforementioned requirement.

4.  In view of the above, the applicant's request should be denied.

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.

ABCMR Record of Proceedings (cont)                                         AR20080010003



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ABCMR Record of Proceedings (cont)                                         AR20080010003



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