BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110019363 


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 discharge be upgraded.

2.  The applicant states his discharge should be upgrade because it has been 30 years and he has been an outstanding citizen. 

3.  The applicant provides no supporting documentation.

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 entered active duty on 17 January 1973, completed training, and was awarded the military occupational specialty 11B (Light Weapons Infantryman).  He reenlisted on 27 November 1974.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on:

* 16 August 1973, disobeying a lawful order from a commissioned officer
* 10 October 1973, for disrespectful language toward a noncommissioned officer and 1 day AWOL
* 17 May 1974, for possession of marijuana;
* 13 June 1975, for disrespectful language toward a noncommissioned officer and 4 days AWOL, resisting arrest, and possession of marijuana
* 22 July 1975, for 3 days AWOL;
* 21 August 1975, possession of marijuana
* 17 September 1975, for assault;

4.  On 12 April 1976 a special court-martial found the applicant guilty of attempted theft of personal property of a fellow Soldier, illegal entry of quarters with the intent of committing larceny and 3 days AWOL.  He was sentenced to confinement for three months, forfeiture of $100.00 pay per month for three months, and to receive a bad conduct discharge.  The convening authority approved the findings and sentence.

5.  The applicant was placed on excess leave from 28 June 1976 through 4 April 1977 pending completion of appellate review.

6.  U.S. Disciplinary Barracks Special Court-martial Order Number 15, dated 17 January 1977, states that as the applicant's period of confinement had been served and the provisions of Article 71(c) having been complied with, his sentence had been affirmed pursuant to Article 66, directed the applicant's bad conduct discharge be executed.

7.  The applicant was discharged on 4 April 1974.  His DD Form 214 shows the authority and reason for separation as Army Regulation 635-200, paragraph 11-2 with separation program designator of JJD (by reason of court-martial conviction).  The character of service is shown as under other than honorable conditions.  He had a total of 3 years, 11 months, and 21 day of creditable service with 87 day of lost time due to AWOL and/or confinement.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  In 1977 the regulation did not include the term "bad conduct" as a characterization of service. Under current regulations the term "under other than honorable conditions" is utilized for an administrative discharge under less the honorable conditions.  Discharges by order of a court-martial are designated as either bad conduct or dishonorable.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the policies and procedures for enlisted personnel separations.  Chapter 3, outlines the criteria for characterization of service and states at:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.; 

	b.  Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge;  

	c.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier; and 

	d.  Paragraph 3-11 states a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

10.  The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

11.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his discharge should be upgraded because it has been 30 years and he has been an outstanding citizen. 
2.  The applicant received nonjudicial punishment on seven occasions and was convicted by a court-martial.  His record does not contain any indication of service significantly outstanding as to mitigate his misconduct. 

3.  His contention that he warrants an upgrade simply due to the passage of time is without merit.  Further he has failed to provide any evidence of "outstanding" post-service activities or conduct to mitigate his misconduct.

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge was commensurate with the applicant's overall record of military service.  There is no basis on which to upgrade his discharge to either honorable or general.

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)                                         AR20110019363



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ABCMR Record of Proceedings (cont)                                         AR20110019363



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