RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2006
      DOCKET NUMBER:  AR20060003732


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Mr. David W. Tucker               |     |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, upgrade of his Bad Conduct
Discharge.

2.  The applicant states, in effect, that his commanding officer never gave
him a chance to Soldier the way he could and that his commanding officer
was later kicked out of the Army for racial discrimination.  Consequently,
the applicant states it is only fair to upgrade his discharge to help him
in life and with his kids.

3.  The applicant provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 May 1990, the date of his discharge.  The application
submitted in this case is dated 16 February 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.  On 6 March 1985, the applicant enlisted in the Regular Army for a
period of
3 years.  Upon completion of basic combat training, the applicant was
trained in, awarded, and served in military occupational specialty (MOS)
16S (Man Portable Air Defense System Crewmember).

4.  The applicant’s records show that he served 34 months in Hawaii from 12
July 1985 through 20 May 1988.  On 30 December 1987, the applicant
reenlisted for a period of 4 years.  The highest grade the applicant
attained was pay grade E-4.

5.  The applicant's military service records contain a DA Form 4187
(Personnel Action), dated 3 May 1989, that shows the applicant went absent
without leave (AWOL) on 22 April 1989 and returned from AWOL on 3 May 1989.

6.  On 15 May 1989, the applicant was convicted at a special-court martial
convened by Headquarters, 2nd Armored Division, Fort Hood, Texas, for
willfully disobeying a noncommissioned officer on 31 March 1989; unlawfully
striking a Soldier by grabbing his shirt and pushing him in the chest with
his hands on
16 March 1989; attempting to strike a Soldier with his fist; being absent
without leave from 24 April 1989 to 3 May 1989; and unlawfully striking a
Soldier in the face and chest with his hands on 22 April 1989.  His
punishment was a bad conduct discharge, confinement for 3 months, and
forfeiture of $466.00 pay per month for 3 months.  The sentence was
approved and executed by the convening authority on 12 June 1989, except
for the part of the sentence extending to a bad conduct discharge.

7.  The applicant was confined by military authorities from 3 May 1989
through 18 July 1989.  The applicant was in an excess leave status without
pay and allowances from 19 July 1989 through 22 May 1990.

8.  The applicant's military service records contain a copy of
Headquarters,
U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma,
Special Court-Martial Order Number 37, dated 3 May 1990.  This order shows,
in pertinent part, that the applicant's sentence to a bad conduct
discharge, confinement for
3 months, and forfeiture of $466.00 pay per month for 3 months, which was
adjudged on 15 May 1989, was affirmed.  This document also provides, in
pertinent part,  that Article 71(c) having been complied with, the bad
conduct discharge will be executed.

9.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort
Sill, Oklahoma, Orders 138-104, dated 18 May 1990, ordered the discharge of
the applicant.

10.  On 22 May 1990, the applicant was discharged with a Bad Conduct
Discharge under the provisions of Army Regulation 635-200 (Personnel
Separations - Enlisted Personnel), Chapter 3 (Character of
Service/Description of Service), Section IV (Dishonorable and Bad Conduct
Discharge), as a result of a court-martial.  He had completed 4 years, 11
months, and 20 days of creditable active military service.

11.  On 16 February 2006, the applicant submitted a DD Form 293
(Application for the Review of Discharge from the Armed Forces of the
United States) to the Army Discharge Review Board (ADRB).  However, the
ADRB did not act on the applicant's request, as he did not apply within the
15-year limit on filing an application to the ADRB.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, Section IV of this Army
regulation, 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, after completion of appellate review and
after such affirmed sentence has been ordered duly executed.

13.  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.

14.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3-year limit on filing to the ABCMR should commence on the date of final
action by the ADRB.  In complying with this decision, the ABCMR has adopted
the broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his commanding officer never
gave him a chance to Soldier the way he could and that his commanding
officer was later kicked out of the Army for racial discrimination.
Therefore, the applicant states it is only fair to upgrade his discharge to
help him in life and with his kids.

2.  There is no evidence of record, and the applicant provides insufficient
evidence, to support his claims that he was not trained and afforded the
opportunity to perform his duties as a Soldier in the U.S. Army and that
his discharge from the U.S. Army was racially motivated.

3.  The evidence of record confirms that 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.

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's administrative remedy with the ADRB
expired on 22 May 2005; however, the applicant did not utilize that
administrative remedy in a timely manner.  Consequently, the applicant
should have discovered the alleged error or injustice now under
consideration on 22 May 1990, the date of his discharge; therefore, the
time for the applicant to file a request for correction of any error or
injustice to this Board expired on 21 May 1993.  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

___JCR__  __RWS__  ___DWT   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.




                                       _Jeffrey C. Redmann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003732                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061116                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |09900522                                |
|DISCHARGE AUTHORITY     |AR 635-200, Section IV & SPCM           |
|DISCHARGE REASON        |As a Result of Court-Martial            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.7100.0000                           |
|2.                      |144.7600.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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