IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090017055 


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, upgrade of his bad conduct discharge.

2.  The applicant states, in effect, the misconduct leading to his discharge was provoked and beyond his control and his conviction, confinement, and payment of fines were sufficient punishment; therefore, he should be granted a general discharge.  

3.  The applicant provides no additional documentary evidence.

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.  The applicant's record shows he enlisted in the Regular Army 9 June 1977.  He trained in and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) he was confined by military authority during the period 22 August 1978 through 30 October 1978.

4.  The applicant's record shows he offered to plead guilty on 16 August 1978 to the following charges:

* Larceny of $330.00
* Failure to Repair
* Incapacitated for duty

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), and of the procedures and rights that were available to him.  Subsequent to receiving legal counsel, the applicant voluntarily entered a guilty plea to all charges.

6.  In a special court-martial, a military judge found the applicant guilty of stealing $330.00 and being incapacitated for duty.  The judge found applicant not guilty of failure to go.

7.  The applicant was sentenced to a bad conduct discharge, confinement at hard labor for 4 months, forfeiture of $200.00 pay per month for five months, and reduction to the grade of private.  The convening authority approved only so much of the sentence as provided for a bad conduct discharge, 40 days confinement, forfeiture of $200.00 per month for five months, and reduction to private.

8.  The applicant completed his sentence and was discharged from service under the provisions of chapter 11, Army Regulation 635-200, (Personnel Separation, Enlisted Personnel) on 31 August 1979.  

9.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time of his discharge confirms he completed a total 2 years 


and 14 days of creditable active military service with 70 days of lost time due to confinement.  The applicant received a Bad Conduct Discharge Certificate with a character of service of under conditions other than honorable.

10. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or bad conduct discharge; and provided that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.

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.

13.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with title 10, USC, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his discharge should be upgraded because his misconduct was provoked and his subsequent conviction, payment of fines and confinement at the time of his discharge should serve as his punishment was carefully considered.

2.  There is no record of evidence nor did the applicant provide any documentation to show he was ever provoked into any misconduct which led to his confinement and subsequent bad conduct discharge during his tenure in the Army.  In fact, the acceptance of the applicant's guilty plea would indicate the contrary.  As a result, there is insufficient evidentiary basis to support the applicant's requested relief.



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)                                         AR20090017055





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ABCMR Record of Proceedings (cont)                                         AR20090017055



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