IN THE CASE OF:
BOARD DATE: 9 December 2008
DOCKET NUMBER: AR20080013671
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 that he made a lot of mistakes and he was careless while he was on active duty, and didn't realize how much of an impact that these mistakes would cause him later in life.
3. The applicant continues that while he had a driving record, that has now dropped off his record. He further states that while he has had a few misdemeanor convictions, he has not had any felony convictions and has not been sentenced to prison.
4. The applicant concludes that he is asking for leniency in the form of an upgraded discharge so he can qualify for medical benefits for his military service, and when he has children he can show them that their father wasn't a failure and did serve his country with honor and dignity.
5. The applicant provides his separation document (DD Form 214) 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 applicant's military records show that he enlisted in the Regular Army on 1 September 1989 and was awarded military occupational specialty (MOS) 94B (food service specialist).
3. On 21 May 1990, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failure to be at his appointed place of duty.
4. On 20 September 1991, the applicant was convicted by a General Court-Martial, pursuant to his pleas, to wrongful appropriation (motor vehicle), disobeying a lawful order, two specifications of absent without leave (AWOL), one specifications of failure to repair, breaking restriction, and five specifications of writing worthless checks.
5. The applicant was sentenced to a BCD, confinement for one year, and forfeiture of all pay and allowances.
6. On 2 February 1993, the court-martial sentence having been affirmed, the BCD was ordered executed.
7. Accordingly, on 16 April 1993, the applicant was discharged with a characterization of service of bad conduct.
8. Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel. 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.
9. 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 has not alleged that there was any error or injustice in his trial by court-martial, and there is no error or injustice evident in those proceedings.
2. The applicant's several acts of serious misconduct warranted a BCD.
3. The applicant's post-service conduct is not sufficiently meritorious to warrant upgrading a properly processed and executed discharge.
4. The applicant should contact the Department of Veterans Affairs to determine what benefits he may be entitled to receive. The Department of Veterans Affairs, not the Board, makes that determination.
5. In view of the foregoing, there is no basis for granting the applicant's 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.
ABCMR Record of Proceedings (cont) AR20080013671
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ABCMR Record of Proceedings (cont) AR20080013671
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