RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           19 February 2004                  
	DOCKET NUMBER:   AR2003088578

	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 J. Wagner		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Robert L. Duecaster		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 that his Bad Conduct Discharge (BCD), be upgraded to fully honorable.

2.  The applicant states that he was young, stupid and on drugs and alcohol when he committed the crime.  He also states that has taken medication for Major Depression Disorder since his discharge.  He goes on to state that he was proud to be in the military and support his country. 

3.  The applicant provides two letters attesting to his treatment for schizoaffective disorder.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of (error or injustice) which occurred on 24 November 1981.  The application submitted in this case is dated 12 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.  He enlisted in the Regular Army on 8 June 1979 for 4 years.  He completed the training requirements and was awarded Military Occupational Specialty (MOS) 75B (Personnel Administration Specialist).  He was assigned to Germany on 14 January 1980 and achieved the pay rank of E-3.

4.  On 6 December 1979, the applicant accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for damaging a wall.  His punishment consisted of a forfeiture of $50.00 for one month.  He did not appeal the punishment.

5.  He accepted NJP under Article 15, UCMJ for failure to obey a lawful order (date is not legible on Record of Proceeding Under Article 15, UCMJ).  His punishment consisted of a forfeiture of $110.00 for one month and 7 days extra duty.  He did not appeal his punishment.

6.  He accepted NJP under Article 15, UCMJ again on 21 November 1980 for failure to go to formation.  His punishment consisted of a forfeiture of 7 days pay ($130.00), extra duty for 14 days and reduction to the grade of E-2.  He did not appeal the punishment.

7.  On 24 March 1981, the applicant was convicted pursuant to his pleas by a General Court-Martial of “by means of force and violence and putting him in fear” committing robbery on 30 November 1980.  He was 20 years old at that time.  His sentence consisted of a BCD, a forfeiture of all pay and allowances, and confinement at hard labor for 9 months.  The convening authority approved the sentence.

8.  He was then imprisoned.  On 15 July 1981, the United States Army Court of Military Review affirmed the conviction.  Upon completion of his sentence (as modified by convening authority), he was given excess leave from 14 October 1981 to 24 November 1981.

9.  On 24 November 1981, he was given a BCD.  He had 1 year, 10 months and 27 days of creditable service.  He also had 204 days of time lost.  He did not have any significant awards or decorations.

10.  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 characterizes the misconduct for which the applicant was convicted.

2.  While the applicant was young, he was 20 years old when he was tried by court-martial.  There is no evidence which would show that immaturity caused the applicant problems while he was on active duty.  Also, there are no documentations showing that the applicant was on drugs or alcohol.

3.  While the applicant has submitted documentation showing he is currently being treated for schizoaffective disorder, there is no evidence or indication that he suffered from that condition while he was on active duty. 

4.  The applicant’s entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition. 

5. The quality of the applicant’s service 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 bad conduct discharge to honorable.

6.  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.

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

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___rjw___  ___mhm_  ___rjd___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that since the applicant is requesting clemency based on his post-service conduct, it would be in the interest of justice to excuse failure to timely file and consider the case on its merits.  

2.  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.

		_________Raymond J. Wagner___________
		        CHAIRPERSON

INDEX

CASE ID	AR2003088578	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040219	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19811124	
DISCHARGE AUTHORITY	AR 635-200, CH 11	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.