RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 November 2005
      DOCKET NUMBER:  AR20050003527


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Larry J. Olson                |     |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 an upgrade of his Bad Conduct Discharge (BCD) to
an honorable discharge.

2.  The applicant provides no statement.

3.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 December 1986, the date he was discharged from active
duty.  The application submitted in this case was received on 9 March 2005.


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 limitations 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 17 February 1983, the applicant enlisted in the Regular Army for a
period of 4 years.  He was trained in, awarded and served in military
occupational specialty (MOS) 11B10 (Infantryman).  The highest grade he
attained was pay grade E-3.

4.  On 22 May 1984, the applicant was convicted by a Summary Court-Martial
of failure to go at the prescribed time to his appointed place of duty;
disobeying a lawful order; being disrespectful in language toward his
superior noncommissioned officer; violating a lawful general regulation;
use provoking words toward his superior noncommissioned officer, and
assaulting his superior noncommissioned officer.  He was sentenced to a
reduction to pay grade E-1 and a forfeiture of $402.00 pay.

5.  Between August and September 1984, the applicant was counseled on
numerous occasions for failure to repair.

6.  On 29 September 1984, the applicant accepted nonjudicial punishment for
being absent without leave (AWOL) from 8 to 10 September 1984.  His imposed
punishment was a reduction to pay grade E-1 (suspended for 6 months), a
forfeiture of $100.00 pay per month for 2 months and 14 days restriction
and extra duty.

7.  On 28 November 1984, the applicant was barred from reenlistment.  The
bar from reenlistment was based on the applicant’s court-martial
conviction, his nonjudicial punishment, his demonstrated traits and habits,
which his commander considered was detrimental to the mission of the Army,
and his poor duty performance, which his commander considered was
unbecoming of a professional Soldier and detrimental to the morale and
discipline of the United States Army.

8.  On 3 December 1984, the applicant was convicted at a Special Court-
Martial, of being AWOL from 12 to 16 October 1984, for communicating a
threat to a commissioned officer, for being disrespectful to a
noncommissioned officer and for the wrongful appropriation of a 1974
Pontiac Grand Prix automobile.  He was sentenced to a BCD; a forfeiture of
$150.00 pay per month for 4 months, confinement for 3 months and a
reduction to pay grade E-1.  The convening authority approved the sentence
and on 23 December 1985, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence.  The applicant’s record
does not indicate that he petitioned the United States Court of Military
Appeals for a grant of review.

9.  On 9 March 1985, the applicant was counseled on the requirements for
completion of a medical examination prior to separation.  However, after
being counseled he declined a separation medical examination.

10.  On 12 March 1985, the applicant requested to be placed in an excess
leave status without pay and allowances.  On the same day, the applicant’s
request was approved.

11.  On 18 March 1985, the applicant’s status was changed from voluntary
excess leave to involuntary excess leave.  On 4 April 1985, the applicant
was notified of his change of status.

12.  On 29 December 1986, the applicant was discharged under the provisions
of Army Regulation 635-200, chapter 3, as a result of a court-martial with
a BCD.  He had completed 3 years, 7 months and 26 days of creditable active
military service.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, in effect at the time,
provided the policies and procedures for separating members with a
dishonorable or bad conduct discharge.  It stipulated that a Soldier would
be given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial, and that the appellate review must be
completed and the affirmed sentence ordered duly executed.

14.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that based on his disciplinary history and
the seriousness of the offenses for which he was convicted, clemency would
not be appropriate in this case.

2.  The evidence of record confirms the applicant’s trial by court-martial
was warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
and regulations and his rights were protected throughout the court-martial
process.

3.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 December 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
28 December 1989.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show that it would be in the interest of justice to excuse failure to
timely file in this case.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  __PHM__  __LJO___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ____   _John Slone______
                                            CHAIRPERSON


INDEX

|CASE ID                 |AR20050003527                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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