IN THE CASE OF:	   

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130004645 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his discharge date as April 1985 instead of 22 August 1983.  He also requests an upgrade of his bad conduct discharge (BCD).

2.  He states:

	a.  his discharge was ordered to be upgraded to less than honorable after he completed re-training with exceptional good behavior and upon his inactive duty status.

	b.  it is apparent that his inactive duty, which concluded his enlistment tour of 6 years, was never recorded.

	c.  he honored his part of the court-martial and it seems there is now some confusion.

3.  He provides his DD Form 214, one page of his DA Form 2-1 (Personnel Qualification Record - Part II), and his DA Form 2-2 (Insert Sheet to DA Form 
2-1).

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 U.S. Army Reserve on 12 December 1979 under the Delayed Entry Program for a period of 6 years.  He enlisted in the Regular Army (RA) on 27 December 1979 for a period of 3 years.  On 7 April 1982, he voluntarily extended his 3-year enlistment to 4 years and 11 months.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on four occasions for the following offenses:

* possessing some marijuana (two occasions) 
* failing to go at time prescribed to his appointed place of duty
* sleeping on his post
* being disrespectful in language toward his superior noncommissioned officer (NCO) 
* communicating a threat to injure his superior NCO
* making a false official statement
* violating a lawful general regulation (two specifications on 4 July 1982)

4.  On 3 February 1983, he was convicted by a special court-martial of stealing the property of a specialist four (SP4), of a total value of about $1,089.97, and unlawfully entering a barracks room with intent to commit larceny.

5.  He was sentenced to be reduced to private/E-1, confined at hard labor for four months, and to be discharged from the service with a BCD.

6.  On 7 March 1983, the court-martial authority approved the sentence.  The forfeitures were applied to pay becoming due on and after the date of this action.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review.  The court-martial orders stated pending completion of appellate review, the accused would be confined at the U.S. Disciplinary Barracks, Fort Leavenworth, KS or elsewhere as competent authority would direct.  

7.  Special Court-Martial Orders Number 220, dated 22 April 1983, remitted the unexecuted portion of the approved sentence to confinement at hard labor for four months.  

8.  He was confined by military authorities from 3 February to 21 April 1983.  He was placed on excess leave on 22 April 1983.  

9.  On 27 April 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.

10.  Court-Martial Order Corrections Certificate, dated 27 April 1983, amended a special court-martial order by deleting the words "The forfeitures shall apply to pay becoming due on and after the date of this action."

11.  On 11 August 1983, the BCD was ordered to be executed.

12.  Orders 159-4, dated 17 August 1983, published by the U.S. Army Correctional Activity, Fort Riley, KS, discharged him from the RA, effective 
22 August 1983.

13.  His DA Form 2-1 indicates his expiration of term of service is 14 February 1985 and he was discharged (BCD) on 22 August 1983.  

14.  His DD Form 214 shows he was discharged on 22 August 1983 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, section IV, as a result of court-martial with issuance of a BCD.  He completed 3 years, 5 months, and 8 days of creditable active service with 78 days of lost time 

15.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214 and is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  

16.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.

	a.  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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the discharge date on his DD Form 214 should be April 1985; however, the evidence of record does not support his claim.

2.  The evidence of record shows he enlisted in the RA on 27 December 1979.  

3.  He was convicted by a special court-martial of stealing the property of a SP4 and unlawfully entering a barracks room with intent to commit larceny.  He was sentenced to be reduced to private/E-1, confined at hard labor for four months, and to be discharged from the service with a BCD.  

4.  He was discharged from active duty on 22 August 1983.  His discharge orders, dated 17 August 1983, and DA Form 2-1 both confirm he was discharged on 22 August 1983.  Therefore, his DD Form 214 properly reflects he was discharged on 22 August 1983 and there is no basis for amending his discharge date.  

5.  His trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.  

6.  Based on the seriousness of the misconduct for which the applicant was convicted his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20130004645





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ABCMR Record of Proceedings (cont)                                         AR20130004645



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