IN THE CASE OF:	  

		BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130005745 


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 during his first enlistment and a large portion of his second enlistment.

	a.  He states that a Soldier in his unit beat his (own) wife and child.  He reacted by acting as a vigilante and assaulted the Soldier.  At the time, he was serving overseas in Germany and he was aware that he could not reenlist due to a medical condition.  He went absent without leave (AWOL) when he learned his German wife was planning to take his daughter out of the country because she believed he was a bad person.

	b.  He states his court-martial was a knee-jerk reaction to a rather brief and hectic period in his military career when he made some bad decisions.  He adds, "I did not fight the 'kick' because I felt I was justified in what I had done" and "the people in command were very upset with me because I did not want to beat the 'kick' as they called it."

	c.  He states he is a disabled veteran and he has carried the burden of a BCD for many years.  He adds he has had a few opportunities to act as a volunteer with the Army over the years.

	d.  He concludes by stating he does not deserve to be saddled with a BCD for the rest of his life.
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 30 August 1976.  He was honorably discharged on 30 August 1978 for the purpose of immediate reenlistment.  The DD Form 214 (Report of Separation from Active duty) he was issued at the time shows he completed 2 years and 1 day of total active service this period.

3.  On 31 August 1978, he reenlisted for a period of 3 years.  He later extended his term of enlistment for an additional 16 months.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service), he served in Germany from:

* 6 February 1977 through 12 February 1980
* 7 December 1980 through 5 October 1982

	b.  item 21 (Time Lost) he was AWOL:

* from 12 August through 20 August 1982
* on 7 October 1982

5.  On 28 October 1982, pursuant to his pleas, the applicant was convicted at a special court-martial (SPCM) for:

* being AWOL from 12 to 21 August 1982 and from 7 to 8 October 1982


* drunk driving on 28 August 1982
* breaking restriction on 10 October 1982

6.  The applicant was sentenced to:

* reduction to the grade of private (PV1)/E-1
* forfeiture of $380.00 pay per month for 5 months
* confinement at hard labor for 5 months
* a BCD

7.  On 7 December 1982, the SPCM Convening Authority:

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

* reduction to PV1/E-1
* forfeiture of $380.00 pay per month for 3 months
* confinement at hard labor for 3 months
* a BCD

	b.  directed:

* the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review
* confinement of the applicant pending completion of the appellate review

8.  SPCM Order Number 660, issued by Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, dated 23 December 1982, remitted the unexecuted portion of the approved sentence to confinement at hard labor for 3 months.

9.  SPCM Order Number 450, issued by the same headquarters, dated
10 August 1983, confirmed the applicant's court-martial sentence was affirmed.  The provisions of Article 71(c) having been complied with, and that portion of the sentence pertaining to confinement having been served, the sentence (as modified) was ordered duly executed.

10.  On 22 August 1983, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3 as a result of court-martial with a BCD.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he completed 4 years, 9 months, and 4 days of net active service this period.


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

	a.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

	b.  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.

	c.  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 his BCD should be upgraded because he served honorably during his first enlistment and a large portion of his second enlistment.

2.  Records show the applicant's initial enlistment and period of honorable active duty service from 30 August 1976 through 30 August 1978 is documented by a separate 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.

4.  The period of satisfactory service during the applicant's second enlistment from 31 August 1978 to 27 August 1982 is acknowledged.  However, thereafter, he committed and he was subsequently convicted of several serious offenses, including drunk driving, breaking restriction, and two specifications of AWOL. 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 either an honorable or a general discharge.

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)                                         AR20130005745



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ABCMR Record of Proceedings (cont)                                         AR20130005745



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