RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           24 February 2004                  
	DOCKET NUMBER:   AR2003088344

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Jeanie M. Biggs		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Lawrence Foster		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that his Bad Conduct Discharge (BCD) be upgraded to honorable.

2.  The applicant states, in effect that he was a good soldier and did his time, both mentally and physicaly.

3.  The applicant does not provide any documentation in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of injustice which occurred on 10 June 1983.  The application submitted in this case is dated 28 February 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  On 21 March 1972, the applicant enlisted in the Regular Army (RA) for 
3 years.  He completed the training requirements and was awarded Military Occupational Specialty 63C (Track Vehicle Mechanic).  He was assigned to Germany on 25 October 1972.  He was awarded the Soldier’s Medal, the National Defense Service Medal, and the Good Conduct Medal.  He advanced to the pay grade of E-4 and was honorably discharged on 25 February 1974.

4.  On 26 February 1974, he immediately reenlisted and through a series of reenlistments remained on active duty until 17 August 1978. He was honorably discharged in pay grade E-5.

5.  On 18 August 1978, he reenlisted for 6 years.

6.  On 13 July 1982, the applicant was convicted contrary to his plea by a General Court Martial of assault and battery upon a child under the age of 16.
His sentence consisted of a BCD, reduction to pay grade E-1 and confinement at hard labor for 13 months.  The convening authority approved the sentence.

7.  He was then imprisoned.  On 4 February 1983, the United States Army Court of Military Review affirmed only so much of the sentence as provided for a BCD, reduction to pay grade E-1, and confinement at hard labor for 9 months.
8.  On 31 May 1983, the court-martial convening authority directed that the applicant’s sentence, as modified, be executed.

9.  Upon completion of his sentence (as modified by convening authority), he was given excess leave.

10.  On 10 June 1983, he was given a BCD.  He had 4 years, 2 months and 
14 days of creditable service during that reenlistment.  He also had 224 days of time lost.

11.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The applicant’s entire record of service was considered.  While the applicant was awarded the Soldier’s Medal in a prior period of service, this decoration is not sufficiently mitigating to upgrade a properly issued BCD.

3. The quality of the applicant’s service during the period in question did not meet the standards of acceptable conduct and performance expected of Army personnel; therefore, the applicant is not entitled to an upgrade of his BCD to an honorable discharge.

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 June 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 9 June 1986.  While, the applicant did not file within the 3-year statute of limitations, it would be in the interest of justice to excuse failure to file in this case and consider the case on its merits because the applicant’s request is based on his post service conduct.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___lf ____  ___rvo___  ___mvt__  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.

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088344	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.