IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090008132 


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 no contentions.

3.  The applicant provides, in support of his application, copies of training certificates; award orders and certificates; certificates of achievement and promotion order for sergeant, pay grade E-5; DA Form 1059 (Academic Evaluation Report); an oath of enlistment; and honorable discharge certificates. 

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 16 September 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 63B (Track Vehicle Repairer).

3.  On 3 February 1981, the applicant was assigned duty as a track vehicle repairman with the 708th Maintenance Battalion in the Federal Republic of Germany.  He served with this unit until his return to the United States for duty at Fort Polk, Louisiana.  

4.  On 3 March 1985, the applicant was promoted to sergeant, pay grade E-5.

5.  On 20 January, 1988, the applicant was assigned to the 299th Support Battalion in the Federal Republic of Germany.

6.  On 1 September 1990, the applicant was promoted to staff sergeant, pay grade E-6.

7.  On 15 April 1991, the applicant was found guilty by a general court-martial of making a false official statement; of larceny of non-military property of a value of about $1,400.00; of making a false sworn statement; and of obstruction of justice.  He was sentenced to confinement for 6 months, a forfeiture of all pay and allowances, reduction to pay grade E-1, and a bad conduct discharge.  On 
7 June 1991, the sentence was approved.  On 27 April 1992, the United States Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

8.  General Court-Martial Orders Number 86, United States Army Armor Center and Fort Knox, dated 31 March 1994, states that Article 71(c) had been complied with and that the portion of the sentence pertaining to confinement had been served.  The sentence to a bad conduct discharge was ordered executed. 

9.  Accordingly, the applicant was discharged on 5 May 1994, under the provisions of Army Regulation 635-200, chapter 3.  He received a bad conduct characterization of service.

10.  The applicant's records show that he had completed more than 13 years of active service.  During this period he had received three Army Achievement Medals, three Army Good Conduct Medals, National Defense Service Medal, Overseas Service Ribbon, Army Service Ribbon, and the Driver and Mechanic Badge.  He also had completed the Primary Leadership Development Course and he had received five Certificates of Achievement.  

11.  Army Regulation 635-200 sets forth the basic authority 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 member’s 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.

12.  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 Soldier’s separation specifically allows such characterization.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his bad conduct discharge be upgraded to honorable.   

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.  Based on the applicant's misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  His awards and decorations do not sufficiently overcome his misconduct.  Therefore, he is not entitled to an honorable or a general discharge, under honorable conditions.

4.  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.

5.  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)                                         AR20090008132



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ABCMR Record of Proceedings (cont)                                         AR20090008132



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