IN THE CASE OF:	  

		BOARD DATE:	    18 April 2012

		DOCKET NUMBER:  AR20110021298 


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. 

2.  The applicant states he has been discharged for 32 years and has changed his life.  He needs to have his discharge upgraded because it is hard for him to get a good job.  

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 enlisted in the Regular Army on 3 October 1978, completed training, and was awarded the military occupational specialty 76W (Petroleum Supply Specialist).
3.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on: 
   
	a.  24 March 1979, for assault on a fellow Soldier;

	b. 28 March 1980, for falsifying records of petroleum issues; and

	c.  3 April 1980, for failure to go to his appointed place of duty and failure to obey a lawful general order by drinking during duty hours.

4.  On 1 June 1981, a special court-martial found the applicant guilty of two counts of assault on a noncommissioned officer (NCO), assault and battery, two counts of communicating a threat, using provoking speech, and extortion.   His sentence was reduction to the lowest enlisted grade, confinement for 75 days, forfeiture of $334.00 pay per month for 3 months, and to be separated with a BCD.

5.  The applicant completed his period of incarceration and was placed on excess leave pending completion of his appellate review.

6.  On 9 July 1982, the appellate review was completed with an affirmation of the findings and sentence and BCD was ordered to be executed.

7.  The applicant was discharged on 2 August 1982 with a BCD.  He had 3 years, 6 months, and 4 days of creditable service with 75 days of lost time and 368 days of excess leave.

8.  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.  

9.  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 assault on several fellow Soldiers and his record does not show any commendations or personal awards to mitigate his misconduct.

2.  The record does not contain and the applicant has not provided any evidence that he has changed his life.

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)                                         AR20110021298





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ABCMR Record of Proceedings (cont)                                         AR20110021298



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