IN THE CASE OF:	  

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130009121 


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 his bad conduct discharge (BCD) be upgraded to a general discharge (GD). 

2.  The applicant states he was illegally charged and convicted.

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, with prior Army National Guard service, enlisted in the Regular Army on 21 February 1979, completed training, and was awarded the military occupational specialty 16D (Hawk Missile Crewman).

3.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on:

* 9 October 1979, for making a false official statement
* 16 January 1980, and on 27 May 1980, for illegal drug possession
* 4 August 1980, for theft/stealing a television/cassette recorder from a fellow Soldier 

4.  On 16 December 1980, the applicant was involved in an incident with another Soldier.  As a result of the nature of the charges he was placed in pretrial confinement.

5.  On 23 February 1981, a general court-martial found the applicant guilty of violation of a general order, by having in his possession a pistol, and aggravated assault on a fellow Soldier, by shooting him in the neck.  He was sentenced to a forfeiture of all pay and allowances, confinement for 4 years, and a BCD.

6.  The court-martial convening authority approved the findings and sentence; however, his period of confinement was reduced to 15 months in accordance with a pretrial agreement. 

7.  The applicant's case was reviewed by the Army Court of Military Review on 30 October 1981.  The Court of Military Review found irregularities in the processing of the court-martial as it related to the use of two NJP's and the difference in the stated maximum punishment.  However, as the convening authority had approved a sentence less than the maximum and the applicant had pled guilty to the charges, the court found that the errors caused no harm and affirmed the charges as modified, the findings, and the sentence.

8.  U.S. Disciplinary Barracks, Fort Leavenworth General Court-Martial Order Number 649, dated 16 April 1981, noted the unexecuted portion of his sentence to confinement was remitted, effective 5 January 1982, and the applicant was placed on excess leave.  It was directed that as the findings and sentence had been affirmed and the provisions of Article 71(c), UCMJ having been complied with, the applicant was to be discharged.

9.  On 14 May 1982, the applicant was discharged with a BCD.  He had completed 2 years, 2 months, and 5 days of creditable active service this period and he had 385 days of lost time and 130 days of excess leave.


10.  The available record contains no evidence of award of any personal decorations or that the applicant received favorable recommendations for any personal action or service.  The highest rank he held was private/pay grade E-2.

11.  The statutory authority under which this Board was created (Title 10, U.S. Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.

12.  Army Regulation 635-200 sets forth the basic authority for the 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's contention that he was illegally charged and convicted is without merit.

2.  The applicant was afforded due process at the time of his court-martial action and although the Army Court of Military Review found some procedural irregularities, the finding and sentence were affirmed.  The applicant pled guilty to the amended charges at his court-martial.

3.  The applicant has provided no evidence that he had any service so meritorious as to outweigh his history of misconduct, as documented by the four NJP's, and the seriousness of the court-martial action.  Therefore, there is insufficient evidence to warrant an upgrade of the character of his service.



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)                                         AR20130009121



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ABCMR Record of Proceedings (cont)                                         AR20130009121



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