BOARD DATE: 4 January 2011 DOCKET NUMBER: AR20100016245 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 discharge date be changed from 11 October 2006 to 8 July 2007. 2. The applicant states he should not have been sent to Iraq because of pending charges that happened in the states. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and page 2 of a memorandum, subject: Recommendation of the Staff Judge Advocate in the Special Court-Martial Case of United States versus (the applicant). 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's military records show he enlisted in the Regular Army on 9 July 2003. He completed initial entry training and was awarded the military occupational specialty of avionic systems repair. He was advanced to pay grade E-3. 3. On 26 March 2005, while in Iraq, a special court-martial convicted the applicant of making a false statement with the intent to deceive, on two separate dates wrongfully using a controlled substance (marijuana), stealing the laptop of another Soldier valued at more than $500, and unlawfully entering the dwelling of another Soldier with the intent to commit a criminal offense. He was sentenced to a bad conduct discharge, forfeiture of $750 per month for 12 months, reduction to E-1, and confinement for 180 days. The sentence was approved. 4. His records show the appellate review was completed, the sentence was affirmed, and the Bad Conduct Discharge was ordered executed. 5. Accordingly, on 11 October 2006, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 3, as a result of a court-martial. He was given a bad conduct discharge. The DD Form 214 he was issued shows he completed 2 years, 10 months, and 10 days of active service. Item 29 (Dates of Time Lost during This Period) contains the entry, "Under 10 USC 972: 20050326-20050818" [26 March 2005-18 August 2005]. He was on excess leave (creditable for all purposes except pay and allowances) from 28 September 2005 to 11 October 2006. 6. Army Regulation 635-200, chapter 3 in effect at the time, provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must have been completed and the affirmed sentence ordered duly executed. DISCUSSION AND CONCLUSIONS: 1. The applicant was convicted by a special court-martial and he was issued a bad conduct discharge pursuant to the approved sentence of the special court-martial. The appellate review was completed and the affirmed sentence ordered executed. His conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time and the discharge appropriately characterizes the misconduct for which the applicant was convicted. 2. There is no evidence in his records and he has provided no evidence to support changing his discharge date from 11 October 2006 to 8 July 2007. 3. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 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. Therefore, he is not entitled to relief. 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) AR20100016245 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100016245 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1