IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100027470 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his first name as Sirone.  He further requests that his bad conduct discharge be upgraded to general, under honorable conditions.

2.  The applicant states he did not notice his name was misspelled on his DD Form 214 until he applied for an upgrade of his discharge.  He further contends that it has been 15 years since the incident of his discharge.  He is not the same person today.  He is now in need of medical care.  In a 3-page statement he explains the incident that led to his court-martial and admits how his one angry minute in time has had a detrimental effect on the rest of his life.  He is now a member of a missionary church, married, and the father of three.

3.  The applicant provides copies of his DD Form 214 and eight letters of support.

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.  A DD Form 215 (Correction to DD Form 214) issued 6 November 1996, corrected the spelling of the applicant's first name from Strone to Sirone.  Therefore, this portion of his application requires no further action.  A copy of the DD Form 215 will be provided to the applicant for his information and use.  Accordingly, this issue will not be further discussed in these proceedings.

3.  On 7 August 1990, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 19D (Cavalry Scout).

4.  From December 1990 to November 1992, the applicant completed a tour of duty in the Federal Republic of Germany.  During this overseas tour of duty, he was advanced to the rank of specialist, pay grade E-4.

5.  In January 1993, the applicant was assigned to the 2nd Squadron, 4th Cavalry located at Fort Stewart, Georgia.

6.  On 17 September 1993, the applicant was found guilty by a general court-martial of:

	a.  violating Article 92 by wrongfully possessing a firearm in the barracks;

	b.  violating Article 128 by assaulting six Soldiers by holding a pistol while saying to one person in particular, "Get up and be a man, I want to kick your ass, and  "I am going to snuff you;" and, by calling him a "bitch," "punk, " a mama's boy," or words to that effect; and, saying to another person, "I ought to kick your ass because you're friends with…;"

	c.  violating Article 128 by unlawfully touching a Soldier; and

	d.  violating Article 134 by wrongfully communicating a threat to injure a Soldier;

7.  The applicant was sentenced to reduction to pay grade E-1, a forfeiture of $600.00 pay per month for 7 months, confinement for 7 months, and a bad conduct discharge.  


8.  On 24 November 1993, the convening authority approved the sentence, and, except for that part of the sentence extending to a bad conduct discharge, directed it be executed.

9.  On 12 May 1994, 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 28, Headquarters, U.S. Army Garrison, Fort Dix, New Jersey, dated 22 February 1995, provided that the sentence of reduction to pay grade E-1, forfeiture of $600.00 pay per month for 7 months, confinement for 7 months, and a bad conduct discharge, adjudged on 
17 September 1993, as promulgated in General Court-Martial Order Number 41, Headquarters, 24th Infantry Division, dated 24 November 1993, has 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 28 April 1995, under the provisions of Army Regulation 635-200, chapter 3 and received a bad conduct characterization of service.

12.  Army Regulation 635-200 sets forth the basic policy for 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.  

13.  The letters of support provided by the applicant from his employer, supervisor, classmates, members of his church, brother-in-law, and the county sheriff's office essentially state that he is an asset to any company and to his community.  While he has made some poor choices in the past, he has managed to improve himself and has demonstrated great ambition and determination to learn and grow.  He has displayed excellent teamwork, leadership abilities, and a very positive attitude in and out of the workplace.  He is an outstanding member of his church who regularly attends services.  He also volunteers most of this time to the church and school.  The county sheriff stated that the applicant has demonstrated outstanding character and exhibits many fine qualities.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be upgraded to general under honorable conditions because it has been 15 years since the incident of his discharge.  He is not the same person today.  He is now in need of medical care.  He is now a member of a missionary church, married, and the father of three.

2.  Trial by court-martial was warranted by the gravity of the offenses 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 a general discharge.

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

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

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)                                         AR20100027470





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ABCMR Record of Proceedings (cont)                                         AR20100027470



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