IN THE CASE OF:
BOARD DATE: 28 October 2008
DOCKET NUMBER: AR20080013028
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, in effect, that his discharge be upgraded.
2. The applicant states, in effect, that he received a bad conduct discharge for selling towels to recruits and that he was influenced by his noncommissioned officer in charge. He contends that the discharge has bothered him, it affects his ability to apply for jobs, and that he is ashamed. He concludes that his discharge was too harsh and should be upgraded.
3. The applicant provides no 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 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 applicant's records show he enlisted in the Army on 23 October 1973. He completed basic combat and advanced individual training (AIT). Upon completion of AIT, he was awarded the military occupational specialty 57H (Cargo Handler).
3. The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: on 22 April 1974, for being absent from his place of duty; on 7 June 1974, for being absent from his unit; on 12 June 1975, for failing to go to his appointed place of duty; and on 24 November 1975, for disobeying a lawful order.
4. On 28 February 1975, the applicant was convicted by a general court-martial for stealing from another Soldier and for being absent without leave (AWOL) from 23 July 1974 to 11 November 1974. He was sentenced to be discharge from the service with a bad conduct discharge.
5. On 14 May 1975, the sentence was approved and the record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. The applicant was retained at his command pending appellate review.
6. On 5 December 1975, the applicant was convicted by a special court-martial for unlawfully selling government property. The punishment consisted of confinement at hard labor for 2 months and forfeiture of $125.00 per month for 2 months.
7. On 24 March 1976, the applicant was separated with an under conditions other than honorable characterization of service. He completed 2 years and 21 days of creditable active service with 131 days of lost time due to being AWOL.
8. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
9. 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 members 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.
10. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.
2. The applicant's record of indiscipline includes several punishments under the provisions of Article 15, UCMJ, and convictions by a general court-martial and a special court-martial.
3. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, he is not entitled to either a general or an honorable discharge.
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) AR20080013028
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ABCMR Record of Proceedings (cont) AR20080013028
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