RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 July 2005
      DOCKET NUMBER:  AR20040010620


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Ms. Brenda Koch                   |     |Member               |

      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, reconsideration of his earlier
appeal that clemency in the form of a discharge upgrade be granted.

2.  The applicant states, in effect, that he was only 18 years old at the
time of his minor offenses.  He contends that he received two letters of
commendation and that he was hurt in basic training and continued to
Soldier on.  He points out that the military judge spoke highly of him and
that an administrative separation would have been fair, not a Federal
conviction and a bad conduct discharge.  He goes on to state that he has
lived a worthy life, that he has been a good citizen for the past 15 years,
that he holds Federal employment with high level security clearances, and
that his community activities prove he is a productive and honorable
citizen.

3.  Counsel states, in effect, that the applicant has built a solid record
of impressive citizenship for the past 15 years, that he has earned five
college degrees and is currently working on his sixth, a graduate level
program in computer science.  He points out that the applicant is happily
married, a father, is employed with the Federal Government, and is a
productive citizen.

4.  Counsel states that the punishment that the applicant received is
overly harsh.  He points out that the absent without leave (AWOL) charge
was only nine or ten days, coming at the end of an approved leave; that
refusing to draw a weapon was not an act of disobedience or disrespect to
the United States, rather an impulsive reaction of a homesick and troubled
young recruit; and that missing movement involved peacetime unit training.
He states that the applicant pled guilty to all charges, that he saved the
Government the necessity of a litigated trial, he was only 18 years old at
the time, and he spent 54 days in pretrial confinement.  Counsel indicates
that the court-martial system was used as a management tool when an
administrative separation was called for, a strong Article 15 followed by
an administrative separation and a general discharge at worst.

5.  The applicant provides a five-page brief from a civilian military
defender; five character reference letters; and numerous supporting
documents and photographs.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003088091, on 28 August 2003.

2.  The applicant provided five character reference letters (from his
mother, his father, his wife, his brother, and his uncle).  They attest
that the applicant is a great husband, a special father, and a loving
brother and son.  They also state that he has worked diligently over the
last 15 years toward the goal of strengthening his character and resolve,
that he has dedicated his life to continued learning, and that he has
struggled to overcome what happened in the Army and since then has built
his life around demonstrating integrity, compassion and persistence as the
foundation to everything he does.

3.  The applicant’s submissions and counsel’s arguments are new evidence
which will be considered by the Board.

4.  The applicant was born on 10 November 1968.  He enlisted on 16 October
1986 for a period of 3 years.  He successfully completed basic training and
advanced individual training in military occupational specialty 31V (unit
level communications maintainer).

5.  On 22 July 1987, in accordance with his pleas, the applicant was
convicted by a special court-martial of being AWOL from 16 May 1987 to 25
May 1987, missing movement through design, and disobeying a lawful order
from a noncommissioned officer.  He was sentenced to be discharged from the
service with a bad conduct discharge, to be confined for 54 days, to be
reduced to E-1, and to forfeit $426 per month for 2 months.  On 27 August
1987, the convening authority approved only so much of the sentence as
provided for reduction to
E-1, confinement for 54 days, forfeiture of $426 for one month, and a bad
conduct discharge.

6.  The decision of the U.S. Army Court of Military Review is not
available.
On 14 January 1988, the bad conduct discharge was ordered to be executed.

7.  Accordingly, the applicant was discharged on 4 March 1988 under the
provisions of Army Regulation 635-200 as a result of a court-martial with a
Bad Conduct Discharge.  He had served 1 year, 2 months, and 16 days of
creditable active service with 63 days lost due to AWOL and confinement.

8.  There is no indication in the available records which shows the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 11 of this regulation, in effect at the
time, states that a Soldier will be given a bad conduct discharge pursuant
only to an approved sentence of a general or special court-martial.  The
appellate review must be completed and the affirmed sentence ordered duly
executed.

10.  Section 1552(f), Title 10, United States Code states that the ABCMR
can only review records of court-martial and related administrative records
to correct a record to accurately reflect action taken by reviewing
authorities under the Uniform Code of Military Justice (UCMJ) or to take
clemency action.

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.

12.  Army Regulation 635-200, paragraph 3-7, 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.  A characterization of under
honorable conditions may be issued only when the reason for the Soldier’s
separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted, he successfully completed basic training
and advanced individual training.

2.  The character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

3.  Good post service conduct alone is not a basis for upgrading a
discharge.

4.  Counsel’s contentions relate to evidentiary and procedural matters
which were finally and conclusively adjudicated in the court-martial
appellate process and furnishes no basis for recharacterization of the
discharge.

5.  Although the applicant contends that his offenses were minor, evidence
of record shows the applicant was discharged with a bad conduct discharge
for being AWOL, missing movement through design, and disobeying a lawful
order.  As a result, his record of service was not satisfactory and did not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, clemency in the form of an honorable discharge is
not warranted in this case nor was his service sufficiently satisfactory to
warrant a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JI______  RO_____  BK______  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 to amend the decision of
the ABCMR set forth in Docket Number AR2003088091, dated 28 August 2003.




            ____John Infante______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010620                           |
|SUFFIX                  |                                        |
|RECON                   |20030828                                |
|DATE BOARDED            |20050721                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19880304                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 11                   |
|DISCHARGE REASON        |As a result of court-martial            |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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