IN THE CASE OF:
BOARD DATE: 23 August 2012
DOCKET NUMBER: AR20120001727
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 an upgrade of his bad conduct discharge (BCD).
2. The applicant states it has been over 21 years since his confinement and release. He has been working and having a normal life. He would like to be able to go to the Department of Veterans Affairs hospital if he gets sick. Upgrading his discharge would be a great accomplishment.
3. The applicant provides no additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 23 March 1985. He completed training and was awarded military occupational specialty 36M (Wire Systems Operator). He reenlisted on 30 December 1988 and again on 17 September 1990.
3. The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on 8 April 1991 for being absent from his place of duty.
4. On 4 June 1991, a bar to reenlistment was imposed. The reasons cited were his NJP, seven dishonored checks (totaling $139.79), a notice of lawsuit (for $1,105.96 to a jeweler), a legal notice of an unpaid debt ($249.24), and six unfavorable counseling statements.
5. On 18 September 1991 in accordance with his pleas, a general court-martial found the applicant guilty of two counts of theft of U.S. currency in excess of $100.00, theft of a diamond ring of a value of over $100.00, and wrongful appropriation of a compact disk player of a value in excess of $100.00. The approved sentence was a bad conduct discharge, forfeiture of all pay and allowances, confinement for 20 months, and reduction to pay grade E-1.
6. The findings and sentence were approved by the court-martial convening authority and affirmed by the U.S. Court of Military Appeals. Article 71(c) of the Uniform Code of Military Justice having been complied with, the BCD was ordered executed and the applicant was accordingly discharged on 20 August 1993. He completed 6 years, 3 months, and 25 days of creditable active service during this period with 1 year, 11 months, and 3 days of lost time.
7. 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.
a. Paragraph 3-7a states an honorable discharge is a separation with honor.
The honorable characterization of service is appropriate when the quality of the Soldiers service has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b states a general discharge 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 3-11 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.
DISCUSSION AND CONCLUSIONS:
1. His contention that he warrants an upgrade of his discharge simply due to the passage of time is without merit.
2. The applicant's misconduct included several serious incidents involving theft of money or property totaling in excess of $1,500.00.
3. His misconduct during his last enlistment is not outweighed by his prior period of creditable service or accomplishment while on active duty and is not be considered to have been honorable or under honorable conditions.
4. The character of the applicant's discharge was commensurate with his overall record of military service. There is no basis on which to upgrade his discharge to 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 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) AR20120001727
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ABCMR Record of Proceedings (cont) AR20120001727
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