IN THE CASE OF:	  

		BOARD DATE:	       31 March 2009

		DOCKET NUMBER:  AR20080019405 


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 general, under honorable conditions. 

2.  The applicant states, in effect, that he did not steal the items.  The other individuals involved stole them.  He was told his discharge would be under honorable conditions because the other persons involved were the ones who did the stealing.  Because of his cancer and too many radiation treatments, he cannot remember the names of the other persons involved.   He is trying to get his life in order before dying. 

3.  The applicant provides no additional documentation 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.  On 9 September 1974, the applicant enlisted in the Regular Army for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 23 January 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for stealing personal property of another Soldier valued at $20.00.  The punishment included a forfeiture of $172.00 pay per month for 2 months and 14 days restriction and extra duty.  The applicant did not appeal the punishment.

4.  On or about 27 January 1975, the applicant was assigned to Fort Hood, Texas, for duty as a cook.

5.  On 13 May 1975, the applicant accepted NJP for willfully failing to report for sick call.  The punishment included reduction to pay grade E-1 (suspended), forfeiture of $80.00 pay per month for 1 month, and 14 days restriction and extra duty.  The applicant's appeal of the punishment was denied.

6.  On 10 July 1975, the applicant accepted NJP for being absent without leave (AWOL) from on or about 30 May to 24 June 1975.  The punishment included reduction to pay grade E-1 (suspended), forfeiture of $100.00 pay per month for 2 months (suspended), 40 days restriction (suspended), and 40 days extra duty.  The applicant did not appeal the punishment.  On 11 July 1975, the suspended portions of this punishment were vacated.

7.  On 22 July 1975, the applicant accepted NJP for breaking restriction and AWOL.  The punishment included forfeiture of $100.00 pay per month for 2 months and 40 days restriction and extra duty.  The applicant did not appeal the punishment.

8.  Special Court-Martial Order Number 45, 13th Corps Support Command, Fort Hood, dated 12 September 1975, shows that before a special court-martial the applicant was arraigned and tried for violations under the UCMJ.  Charge I was for violation of Article 121(Larceny) by stealing another Soldier's wallet containing $5.00.  Charge II was for violation of Article 134 (Breaking Restriction), four specifications.  The applicant pled not guilty to Charge I and its specification; guilty to Charge II and specification 4; and not guilty to specifications 1, 2, and 3 of Charge II.  The Military Judge found the applicant not guilty of Charge I and its specification; granted a motion for a finding of not guilty of specifications 1, 2, and 3 of Charge II; and guilty of Charge II and specification 4.  The military judge sentenced him to reduction to pay grade E-1, forfeiture of $100.00 pay per month for 1 month, and confinement at hard labor for 14 days.  The sentence was adjudged on 2 September 1975.  

9.  The convening authority approved the sentence and ordered it executed, except for that portion pertaining to confinement at hard labor for 14 days, which was suspended until 30 November 1975.  At that time, unless sooner vacated, the suspended portion of the sentence to confinement was to be remitted without further action.  

10.  Special Court-Martial Order Number 51, 13th Corps Support Command, dated 17 October 1975, vacated the suspended and unexecuted portion of the sentence to confinement at hard labor for 14 days.  It directed that the applicant was to be confined in the Area Confinement Facility, Fort Hood, or elsewhere as competent authority may direct.

11.  Special Court-Martial Order Number 1, Headquarters, Fort Sam Houston, Texas, dated 20 February 1976, shows that before a special court-martial, the applicant was arraigned and tried for violations under the UCMJ.  Charge I was for violation of Article 81 (Conspiracy) by conspiring with another Soldier to steal another Soldier's personal property valued at about $868.00.  Charge II was for violation of Article 121 (Larceny), by stealing another Soldier's property valued at about $868.00.  Charge III was for violation of Article 134 (Possession of Marijuana) by having 1 ounce, more or less.  The applicant pled not guilty to all charges and specifications.

12.  The Military Judge found:

   a.   of the specification of Charge I: Guilty, except for the words, "of a Panasonic Tape Recorder solid state stereo FM/AM, Model RS-763FS, serial number 7537, of a value of $436.00; a Kodak pocket instamatic camera, model 30, of a value of about $30.00; and 12 reels of recording tape of a value of about $24.00; a brown box containing a collection of coins and currency of a value of about $150.00; a Panasonic 8 track recorder, serial number RB 458468, of a value of about $159.00;and two rings of a value of about $69.00, for a total value of about $868.00," substituting therefore, respectively, the words, "items of a value in excess of a $100.00," the property of Staff Sergeant/ E-6, [Soldier's name, social security number and unit], and in order to effect the object of the conspiracy the said [applicant] did enter the room of [the victim] and steal the aforementioned items and did conceal the above stated box of coins and currency of a value of about $150.00 in his locker in room 340B, building 21003; of the excepted words: Not Guilty; of the substituted words: Guilty; 
   
   b.  of Charge I: Guilty;
   
   c.  of the specification of Charge II:  Guilty, except the words, "of a value of $436.00," "$30.00," "$24.00," "$150.00," "$159.00," "$69.00," "for a total value of about $868.00," substituting therefore, respectively, the words, "of a total value in excess of a $100.00"; of the excepted words:  Not Guilty; of the substituted words:  Guilty;
   
   d.  of Charge II: Guilty; and
   
   e.  of Charge III and its specification:  Motion for a finding of not guilty by the defense sustained by the Military Judge.

13.  The Military Judge sentenced the applicant to confinement at hard labor for 
3 months, forfeiture of $240.00 pay per month for 3 months, and a bad conduct discharge.  The sentence was adjudged on 24 November 1975.

14.  The convening authority approved the sentence.  The convening authority stated that he considered all matters contained in the post-trial review by the Staff Judge Advocate and all of those matters presented by the counsel for the applicant in response to that review.  Pending completion of appellate review the applicant was to be confined in the Area Confinement Facility, Fort Hood, or elsewhere as competent authority may direct.  

15.  Special Court-Martial Order Number 21, Headquarters, III Corps and Fort Hood, Texas, dated 19 July 1977, provided that the sentence to a bad conduct discharge, confinement at hard labor for 3 months, and forfeiture of $240.00 pay per month for 3 months, adjudged on 24 November 1975, promulgated in Special Court-Martial Order Number 1, Headquarters, Fort Sam Houston, dated
20 February 1976, had been affirmed.  Article 71(c), UCMJ, having been complied with, the sentence was to be duly executed.  That portion of the sentence pertaining to confinement had been served.

16.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows that he was discharged on 19 December 1977 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, by reason of court-martial.  He received an under other than honorable conditions characterization of service.

17.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not steal the items for which he was charged.  He also contends that he was told his discharge would be a general, under honorable conditions.

2.  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.

3.  The applicant has not provided any substantiating evidence showing that he did not commit the offenses in question, or that he was promised a general discharge.

4.   Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

5.  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.

6.  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)                                         AR20080019405



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ABCMR Record of Proceedings (cont)                                         AR20080019405



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