IN THE CASE OF:	  

		BOARD DATE:	    2 August 2011

		DOCKET NUMBER:  AR20100028399 


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 and his Department of Veterans Affairs (VA) benefits reinstated.

2.  The applicant states he excelled in the Army during his initial entry training and was recognized for his exceptional performance.  However, when he was assigned to Hawaii his pay was often not right and he struggled to make ends meet.  He adds that he served on the front lines of Operation Desert Shield/Desert Storm away from his family for 7 long months.  If he had not extended his enlistment to meet the service remaining requirement for assignment to Hawaii he would have an honorable discharge.  He states he had too much time left on his current enlistment to reenlist and he had been separated from his wife long enough, therefore, he extended.

3.  The applicant does not provide any additional documents.

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 he enlisted in the Regular Army for 
4 years on 6 July 1989.  He was awarded the military occupational specialty of chaplain assistant, served in Southwest Asia from 30 September 1990 to 18 March 1991, and was promoted to pay grade E-3.

3.  On 29 August 1991, he extended his enlistment to complete an overseas tour in Hawaii and he was subsequently promoted to pay grade E-4.

4.  On 15 March 1994, he was convicted by a general court-martial of:

* Stealing a projection television set, military property of a value of about $2,500
* Stealing a video cassette recorder with remote, military property of a value of about $259
* Stealing a stereo cassette player, military property of a value of about $160
* Stealing a radio scanner, private property of a value of about $400
* He was sentenced to a BCD, a forfeiture of all pay and allowances, confinement for 9 months, and reduction to pay grade E-1

5.  The sentence was approved and ordered executed, except for that part of the sentence extending to a BCD.  The U.S. Court of Criminal Appeals affirmed the BCD on an unknown date and the U.S. Court of Appeals for the Armed Forces denied his petition for review on 21 March 1995.

6.  On 1 May 1995, the applicant's sentence having been affirmed, his BCD was ordered to be executed.

7.  Accordingly, on 25 May 1995, the applicant was discharged pursuant to his sentence to a BCD.

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 did not contend that there was an error or injustice in his court-martial proceedings and none are noted.

2.  The applicant's excellent duty performance is commendable.  However, such service is outweighed by his conviction by a general court-martial of four specifications of larceny.  That conviction renders his service unsatisfactory.

3.  There is no evidence to support the applicant's contention that he had pay problems.  There is also no evidence that he requested assistance in resolving any pay problems.  As such, this is not accepted as mitigating in his case.  Many Soldiers encounter pay problems during their careers and they do not resort to larceny.  

4.  His contention that he would have an honorable discharge if he had not extended his enlistment to meet the service remaining requirement for assignment to Hawaii was noted.  However, he did extend his enlistment.

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)                                         AR20100028399



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ABCMR Record of Proceedings (cont)                                         AR20100028399



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