IN THE CASE OF:	  

		BOARD DATE:	    19 April 2012

		DOCKET NUMBER:  AR20110020614 


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.

2.  The applicant states he would like an upgrade to be able to use the G.I. Bill for schooling to better his life.

3.  The applicant provides copies of his General Court-Martial Order Number 258 and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 enlisted in the Army Reserve (USAR) on 26 July 1999. 

3.  On 9 December 2004, he was ordered to active duty, effective 17 January 2005, in support of Operation Iraqi Freedom with assignment to the 510th Postal Company, 510th Personnel Battalion, Combined/Joint Task Force (CJTF)-76 Bagram, Afghanistan. 

4.  On 3 December 2005, a general court-martial found the applicant guilty under the Uniform Code of Military Justice (UCMJ) of violation of:

* Article 78, (Accessory after the fact), by altering serial numbers to conceal the theft of mail by another Soldier
* Article 107 (False official statements), with intent to deceive, making a false official written statement
* Article 134 (General article), for knowingly receiving stolen property

5.  On 10 April 2006, the court-martial convening authority approved a sentence of reduction to pay grade of E-1; forfeiture of $1,200.00 pay per month for fourteen (14) months; confinement for 14 months; and a bad-conduct discharge.  He directed that, except for the BCD, the sentence to be executed.  

6.  Upon completion of his period of confinement, on 7 November 2006, the applicant was placed on excess leave pending completion of his appellate review.

7.  General Court-Martial Order Number 258, dated 21 September 2007, directed that, as the provisions of Article 71(c), UCMJ, had been complied with; the Army Court of Criminal Appeals had affirmed the court-martial findings and sentence; and the applicant had served his period of confinement; the BCD was to be executed.

8.  The applicant was discharged with a BCD on 10 January 2008.  He had 1 year, 2 months, and 3 days of creditable service with 6 years and 19 days of prior inactive service, 340 days of lost time, and 430 days of excess leave.

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; and

	c.   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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's misconduct included several serious incidents including theft from his fellow deployed Soldiers.  His record does not show any commendations or personal awards to mitigate his misconduct.

2.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offences for which he was court-martialed and is appropriate for the applicant's overall record of military service.

3.  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 this requirement.

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)                                         AR20110020614





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ABCMR Record of Proceedings (cont)                                         AR20110020614



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