BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130005405 


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 he served honorably for nearly seven years during two periods of prior active duty enlisted service.  He adds that he was discharged from the Army more than 20 years ago.

3.  The applicant provides no additional documentary evidence in support of his application.

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 (RA) on 13 February 1979 and he reenlisted in the RA on 30 November 1982.
3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 13 February 1979, he was honorably discharged on 29 November 1985.  He completed 6 years, 9 months, and 17 days of net active service this period.

4.  The applicant enlisted in the U.S. Army Reserve on 26 February 1987.  He further enlisted in the RA on 1 April 1987 for a period of 3 years.

5.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 21 (Time Lost) he was absent without leave (AWOL):

* from 9 January through 22 January 1989
* from 7 February through 15 March 1989

6.  In April 1989, the applicant was convicted at a general court-martial (GCM) of the charges and specifications of:

* AWOL (from 9 to 23 January 1989 and from 7 February to 15 March 1989)
* wrongful use of cocaine (between 29 October and 29 November 1988)
* issuing bad checks (between 14 December 1988 and 20 January 1989)

7.  The applicant was sentenced to:

* reduction to the grade of E-1
* forfeiture of all pay and allowances
* confinement for 12 months
* a BCD

8.  On 7 December 1982, the GCM Convening Authority (GCMCA):

   a.  approved only so much of the sentence as provided for:

* reduction to the grade of E-1
* forfeiture of all pay and allowances
* confinement for 8 months
* a BCD

   b.  directed the sentence be executed, except that portion extending to a BCD.

9.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, GCM Order Number 765, dated 20 September 1989, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, the sentence extending to a BCD was ordered duly executed.

10.  The applicant's DD Form 214 shows he entered active duty this period on 
1 April 1987 and he was discharged with a BCD on 29 September 1989.  He had completed 1 year, 9 months, and 20 days of net active service this period.

11.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, 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.  Chapter 3, 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 that his BCD should be upgraded because he served honorably for nearly seven years during two periods of prior active duty enlisted service.

2.  Records show the applicant's prior period of honorable active duty enlisted service from 13 February 1979 through 29 November 1985 is documented by a DD Form 214.

3.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal.

4.  The period of satisfactory service from 1 April 1987 to 28 October 1988 during the period of service under review is acknowledged.  However, thereafter, the applicant committed and was subsequently convicted of several serious offenses, including AWOL (two specifications), wrongful use of cocaine, and issuing bad checks.  Thus, his service cannot be categorized as honorable service or service under honorable conditions.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130005405



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ABCMR Record of Proceedings (cont)                                         AR20130005405



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