RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 November 2005
      DOCKET NUMBER:  AR20050006109


      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. Thomas Howard                 |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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, that clemency be granted in the form
of an honorable discharge.

2.  The applicant states since his discharge in July 1986 he has made
considerable efforts to amend his conduct and aggression.  During this
time, he has taken responsibility for substance abuse and worked with
counseling services to eliminate this problem.  Over the past two decades,
he has changed his behavior, has no problems with authority, and his police
record is absent of any violations.  He contends that although his military
history was not stellar, his civilian life has been a vast improvement and
that his “bad conduct discharge” reflects the way he was 20 years ago, not
today.  He also states he wants perspective employers to see him as he is
today and not to base their hiring decision on his conduct 20 years ago.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and a Maryland Driver Record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 July 1986.  The application submitted in this case is dated
13 April 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 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.  The applicant enlisted in the Army on 27 October 1982 for a period of 4
years. He successfully completed basic training and advanced individual
training in military occupational specialty 75C (personnel management
specialist).

4.  On 1 November 1984, the applicant received a Letter of Reprimand for
driving while intoxicated.

5.  On 28 June 1985, nonjudicial punishment was imposed against the
applicant for possessing marijuana.  His punishment consisted of a
reduction to E-3 (suspended) and a forfeiture of pay.

6.  On 20 September 1985, in accordance with his pleas, the applicant was
convicted by a special court-martial of disobeying a lawful order,
assaulting a first sergeant, and disorderly in station.  He was sentenced
to be reduced to E-1, to forfeit $350 pay per month for 3 months, to be
confined for 45 days, and to be discharged from the service with a bad
conduct discharge.  On 6 January 1986, the convening authority approved the
sentence.

7.  On 27 February 1986, the U.S. Army Court of Military Review affirmed
the findings of guilty and the sentence.

8.  The bad conduct discharge was ordered to be executed on 12 June 1986.

9.  Accordingly, the applicant was discharged on 14 July 1986 under the
provisions of Army Regulation 635-200, chapter 3, as a result of a court-
martial.  He was issued a bad conduct discharge.  He had served 3 years, 7
months and 11 days of total active service with 37 days of lost time due to
confinement.

10.  There is no evidence in the applicant’s service personnel records
which shows he was diagnosed with substance abuse or dependency prior to
his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 3 of this regulation 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.

12.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records 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 or to take clemency action.

13.  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.

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

2.  A discharge is not upgraded for the sole purpose of obtaining
employment opportunities.

3.  The applicant’s record of service included one nonjudicial punishment,
a special court-martial conviction and 37 days of lost time.  As a result,
his record of service was not satisfactory and did not meet the standards
of acceptable conduct and performance 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.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 14 July 1986; therefore, the time for the
applicant to file a request for correction of any injustice expired on 13
July 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

TH______  JI______  CD______  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.




            __Thomas Howard_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006109                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051103                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19860714                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 3                    |
|DISCHARGE REASON        |As a result of a court-martial          |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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