RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         12 October 2006
      DOCKET NUMBER:  AR20060001966


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 two applications, in effect, that his Bad
Conduct Discharge (BCD) be voided because he was under age at the time he
enlisted.

2.  The applicant states, in effect, in his first application, dated 26
January 2006,  that he was only 15 years old at the time he enlisted in the
Army.  In his second application, dated 16 March 2006, he indicates he was
17 years old when he entered the Army.  He states that he was an only son
and after his father died, he forged papers so he could enlist.  He states
that he knows he should have never done this, but he also should not have
been allowed to enlist.

3.  The applicant provides a birth certificate in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 21 July 1982.  The applications submitted in this case are
dated
26 January 2006 and 16 March 2006.

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.  The applicant's record shows he enlisted in the Regular Army and
entered active duty on 11 July 1979.  The enlistment document (DD Form 4)
on file shows his date of birth as 16 October 1961.  The enlistment packet
on file also contains a telephone conversation record completed by the
recruiting area commander, a captain, dated 14 June 1979, in which a Health
Department official verifies the applicant's date of birth was 16 October
1961.  The enlistment packet also contains a DD Form 1966/8 that contains
the consent of the applicant's mother for his enlistment.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) confirms,
in Item 18 (Appointments and Reductions), that he attained the rank of
private first class (PFC) on 1 September 1980, and that this is the highest
rank he attained while serving on active duty.  It also shows he was
reduced to private/E-1 (PV1) on 4 February 1981 and again on 19 June 1981.

5.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal a
disciplinary history that includes his acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on the following two separate occasions for the
offenses indicated:  19 May 1980, for failing to go to his appointed place
of duty at the prescribed time; and 5 February 1981, for wrongfully
communicating a threat to kill a superior Noncommissioned Officer (NCO).

6.  On 13 April 1981, a Special Court-Martial (SPCM) convicted the
applicant of the following offenses:  two specifications of violating
Article 86 of the UCMJ by being absent without leave (AWOL) from on or
about 29 October through on or about 7 November 1980 and by failing to go
to his appointed place of duty at the time prescribed time on or about 24
October 1980 (Charge 1); and violating
Article 91 of the UCMJ by being disrespectful in language toward a superior
NCO in the execution of his duties on or about 25 November 1980 (Charge
II).

7.  The SPCM also convicted the applicant of the following additional
offenses:  two specifications of violating Article 86 of the UCMJ by
failing to go to his appointed place of duty at the prescribed time on or
about 19 February 1981 (Additional Charge I); two specifications of
violating Article 91 of the UCMJ by being disrespectful in language toward
a superior NCO in the execution of his duties on or about 19 February 1981,
and assaulting a superior NCO in the execution of his duties on or about 19
February 1981 (Additional Charge II); by violating Article 134 of the UCMJ
by breaking restriction on or about 19 February 1981 (Additional Charge
III); violating Article 86 of the UCMJ by being AWOL from on or about 20
February through on or about 2 March 1981 (Additional Charge IV); and
violating Article 95 of the UCMJ by escaping from lawful custody on or
about 20 February 1981 (Additional Charge V).

8.  The resulting sentence from the SPCM Military Judge was a forfeiture of
$334.00 per month for five months, confinement at hard labor for five
months, and a BCD.  The court-martial convening authority approved the
sentence as adjudged in Headquarters, 1st Armored Division SPCM Orders
Number 128, dated 18 June 1981.

9.  On 10 September 1981, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence pertaining to the
applicant after having determined that they were correct in law and fact.

10.  On 7 June 1982, SPCM Order Number 57, issued by Headquarters, United
States Army Training Center and Fort Dix, Fort Dix, New Jersey, directed,
Article 71c of the UCMJ having been complied with, that the unexecuted
portion of the applicant’s approved sentence be duly executed.  On 21 July
1982, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant on the date of his separation,

21 July 1981, shows that he was separated with a BCD under the provisions
of chapter 11, Army Regulation 635-200, by reason of court-martial.  It
also shows that at the time of his separation, he had completed a total of
2 years, 6 months and 5 days of creditable active military service, and he
had accrued 190 days of time lost due to being AWOL and in confinement.

12.  The applicant provides a certified copy of his birth certificate,
dated 2 March 2006.  This document shows his date of birth as 16 October
1961.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11, 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.

15.  Chapter 7 of the separations regulation, in effect at the time of the
applicant's discharge, provided the policy for discharge by reason of
minority.  It stated, in pertinent part, that an individual was permitted
to enlist at the age of 17 with the consent of a parent or guardian.  The
law upon which this policy was based permitted the parent or guardian to
request the individual be discharged provided evidence was provided to show
the individual was under 18 years of age and that the member enlisted
without the consent of the parent or guardian.  There are also provisions
that allow The Secretary of the Army to separate a member who is at least
17, but less than 18, years of age without an application from the parent
or guardian.  In such circumstances, the discharge is not mandatory and the
member's commander may recommendation retention of the member.

16.  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.  The applicant's contention that he was not old enough to enlist and
therefore his discharge should be upgraded, and the supporting documents he
submitted were carefully considered.  However, the date of birth listed on
the birth certificate he provides, and on his enlistment document, which
was verified by a Health Department official at the time of his enlistment,
are the same.  Further, his mother consented to his enlistment.  Thus, it
appears he was properly enlisted at age 17, three months short of his 18th
birthday, with parental consent.

2.  Even assuming the applicant forged the necessary forms, including his
mother's signature on the parental consent form, the applicant was properly
retained on active duty.  The applicant's mother or an authorized guardian
did not submit a request for his discharge within 90 days of his enlistment
in accordance with the governing law and regulation.  Therefore, any claim
the applicant may have had for discharge based on minority disappeared 90
days after his enlistment.

3.  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.

4.  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.  After a thorough and comprehensive review of the applicant’s
military service record, it is concluded that based on his extensive
disciplinary history and the seriousness of the offenses for which he was
convicted, clemency would be inappropriate in this case.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 July 1982, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 20 July 1985.  He failed to 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

___JI  ___  __GJP __  __KSJ __  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 Infante________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001966                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/10/12                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1982/07/21                              |
|DISCHARGE AUTHORITY     |AR 635-200 C11                          |
|DISCHARGE REASON        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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