IN THE CASE OF:	

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100022771 


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 his Bad Conduct Discharge (BCD) be upgraded.

2.  The applicant states, in effect, he was accountable for his actions while in Korea.  He has not let his BCD hamper his life.  He has been productive and he has a family.

3.  The applicant provides three letters of support, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and documents pertaining to his court-martial.

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 military records show that he enlisted in the Regular Army on 20 July 1977, was awarded the military occupational specialty of track vehicle mechanic, and was promoted to pay grade E-4.

3.  He accepted nonjudicial punishment (NJP) on five occasions for the following offenses:

* failure to go at the time prescribed to his appointed place of duty (two specifications)
* failure to have an Armed Forces Liberty Pass while being absent from his unit in an off-duty status
* participating in a breach of the peace by wrongfully shouting, pushing and fighting
* disobeying a lawful command
* absenting himself from his appointed place of duty 

4.  On 23 June 1981, the applicant was tried by a special court-martial and found guilty of:

* Being absent without leave (AWOL) from 11 to 14 February 1981
* Being AWOL from 19 to 21 February 1981
* Being AWOL from 22 February to 10 March 1981
* Violating a lawful general regulation by wrongfully using a ration control plate made out in the name of another individual on 28 January 1981
* Wrongfully having in his possession, with intent to deceive, an Armed Forces Liberty Pass, then well knowing the same to be false and unauthorized
* Being AWOL from 13 March to 21 May 1981
* Violating a lawful general regulation by wrongfully using a ration control plate made out in the name of another Soldier without the consent of the Soldier on 21 May 1981
* Wrongfully having in his possession a false Armed Forces Identification Card

5.  The applicant was sentenced to a reduction to pay grade E-1, to forfeit $150.00 pay for 6 months, to be confined at hard labor for 45 days, and to be discharged with a BCD.

6.  The convening authority only approved so much of the sentence as provided for a BCD, confinement at hard labor for 45 days, and reduction to pay 
grade E-1.

7.  The U.S. Court of Military Review's affirmation of the applicant's court-martial's findings and sentence is not contained in the applicant's records.  The U.S. Court of Military Appeals denied the applicant's Petition for Review on 27 April 1982.  On 24 June 1982, he was issued a BCD as a result of the court-martial.

8.  Army Regulation 635-200 (Enlisted Separations) 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 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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP on five occasions for six offenses and he was convicted by special court-martial for eight unrelated offenses.

2.  Such a record clearly is not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  He was properly discharged in accordance with a court-martial order and issued a BCD.

4.  While it is commendable that the applicant has turned his life around, his post-service conduct is insufficient to warrant upgrading a properly issued discharge. 

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)                                         AR20100022771



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ABCMR Record of Proceedings (cont)                                         AR20100022771



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