IN THE CASE OF:	

		BOARD DATE:	  8 April 2010

		DOCKET NUMBER:  AR20100000126 


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 or to general under honorable conditions.

2.  The applicant states that he wants an upgrade of his discharge so he can receive benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides a letter of support from the senior pastor of his church.

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 15 June 1977, the applicant enlisted in the Regular Army.  He was subsequently assigned to Fort Benning, Georgia, where he completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 17 September 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for leaving his appointed place of duty without authority.  The punishment was a forfeiture of $75.00 pay per month for 1 month and 7 days of restriction and extra duty.

4.  On 22 September 1977, the applicant departed Fort Benning for duty in Europe.

5.  On 19 October 1977, the applicant was assigned as a rifleman with Company B, 3rd Battalion, 36th Infantry Regiment, located in the Federal Republic of Germany.

6.  On 15 December 1977, the applicant was advanced to private/pay grade E-2.

7.  On 12 May 1978, the applicant was found guilty by a general court-martial of stealing 190 Deutche Marks (equivalent at the time of about $95.00 in U.S. currency) by means of force and violence from a German national.  He was sentenced to confinement at hard labor for 13 months, a forfeiture of $300.00 pay per month for 13 months, reduction to pay grade E-1, and a bad conduct discharge.  He was confined for 245 days.  No previous convictions were considered.

8.  On 24 July 1978, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, forfeiture of $300.00 pay per month for 10 months, confinement at hard labor for 10 months, and reduction to pay grade of E-1.  The forfeitures applied to pay becoming due on and after the date of the convening authority's action.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

9.  On 25 September 1978, the U.S. Army Court of Military Review considered the entire record and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the finding of guilty and the sentence were affirmed.

10.  General Court-Martial Order Number 63, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, dated 6 February 1979, provided that the sentence to a bad conduct discharge, forfeiture of $300.00 pay per month for 10 months on pay becoming due on and after the date of the convening authority's action, confinement at hard labor for 10 months, and reduction to pay grade E-1, adjudged on 12 May 1978 as promulgated in General Court-Martial Order Number 63, Headquarters, 3rd Armored Division, dated 24 July 1978, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was ordered executed.

11.  The applicant's DD Form 214 shows that he was discharged on 14 May 1979, under the provisions of Army Regulation 635-200, paragraph 11-2, and received an under other than honorable conditions characterization of service.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted), 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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.

14.  The senior pastor of the applicant's church wrote in a letter of support, dated 4 August 2009, that the applicant had joined the church in 2005.  During the period between 2005 and sometime in 2007, the applicant was involved in the Voices of Praise Choir, Exodus, the Twelve Steps with Jesus Ministry, and the Bill Glass Prison Ministry 2008.  After leaving the church in 2007 to attend a different church, he returned in 2008.  At that time he expanded his involvement to include the Men's Bible Study and the Computer Ministry.  The applicant brought a strong passion and desire to see the love of Christ manifested in the community.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to honorable or to general under honorable conditions so he can receive benefits from the VA.

2.  Trial by court-martial was warranted by the gravity of the offense charged.  The 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 this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  The applicant's desire to obtain VA benefits is not justification for upgrading his discharge.

5.  The applicant's claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his criminal acts while in the military service.

6.  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.

7.  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)                                         AR20100000126



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)