IN THE CASE OF:  

		BOARD DATE: 26 September 2013

		DOCKET NUMBER:  AR20130003472 


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) to general under honorable conditions.

2.  The applicant states he was informed that the discharge would be upgraded after 1 year.  He discovered the discharge had not been upgraded while applying for veterans' benefits.
 
3.  The applicant provides no additional evidence.

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 on 13 January 1988.  He held military occupational specialty 52C (Utilities Equipment Repairer).

3.  On 25 September 1989, he was convicted by a general court-martial in accordance with his plea of one charge of violation of Article 112a of the Uniform Code of Military Justice (UCMJ) for wrongfully distributing marijuana in the hashish form.

4.  The court sentenced him to forfeiture of $400.00 pay per month for 1 month, confinement for 30 days, and a BCD.

5.  The convening authority approved the sentence and, except for the BCD, directed execution of the sentence.

6.  On 5 January 1990, the U.S. Army Court of Military Review held the finding of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the finding of guilty and the sentence were affirmed.

7.  Headquarters, 7th Infantry Division (Light) and Fort Ord, General Court-Martial Order Number 8, dated 11 April 1990, shows the sentence was affirmed.  Article 71(c) of the UCMJ having been complied with, the BCD was ordered executed.

8.  The applicant was discharged on 28 October 1991 with a BCD.  He completed 3 years, 8 months, and 16 days of net active service with 670 days of excess leave.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-7b states 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.  His trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the applicant's discharge appropriately characterizes the misconduct for which he was convicted.

2.  The applicant did not provide any evidence to substantiate his assertion that he was informed that his BCD would be upgraded after 1 year.  There is no legal provision for such action.

3.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20100010650



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ABCMR Record of Proceedings (cont)                                         AR20130003472



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