RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2006
      DOCKET NUMBER:  AR20060007809


      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. Peter B. Fisher               |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 his dishonorable discharge be
upgraded to an honorable discharge or general discharge under honorable
conditions.

2.  The applicant states, in effect, that he had three good discharges
during
13 years of military service; however, he made one mistake and has been
punished for over 15 years for that mistake.  The applicant also states, in
effect, that his penalty was much too harsh; he is the father of nine
children; he is now seriously ill; and has been denied medical care [by the
Veterans Administration]. The applicant asks consideration from this Board
in upgrading his discharge.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 December 1989, the date of his discharge.  The application
submitted in this case is dated 22 May 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 31 January 1970, the applicant enlisted in the Regular Army (RA) for
a period of 3 years.  He was trained in, awarded, and served in military
occupational specialty (MOS) 13A (Field Artillery Basic).  The highest
grade he attained was private first class/pay grade E-3.

4.  On 1 April 1971, the captain serving as the commander of Battery C,
1st Battalion (Airborne), 320th Artillery, 82nd Airborne Division
Artillery, Fort Bragg, North Carolina, recommended the applicant be
discharged from the service for unfitness.  The discharge was recommended
because of the applicant's repeated failure to report to his appointed
place of duty, his complete disregard for military authority, continued
unsatisfactory performance, and frequent incidents of a discreditable
nature with civil and military authority.  The commander also recommended
that the applicant be issued an Undesirable Discharge Certificate.

5.  On 27 July 1971, the commander of the 82nd Airborne Division, Fort
Bragg, North Carolina, approved the recommendation for discharge for
unfitness under the provisions of paragraph 6a(1) of Army Regulation 635-
212.  The requirement for a rehabilitative transfer was waived in
accordance with paragraph 7c(2) of Army Regulation 635-212 as the commander
determined efforts toward rehabilitation would be ineffective.  The
division commander also directed that the applicant be issued an
Undesirable Discharge Certificate.

6.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows that he was discharged for unfitness on 13 August 1971 in accordance
with the provisions of Army Regulation 635-212.  At the time, the applicant
had completed 1 year, 6 months, and 13 days of active service.

7.  On 16 June 1977, the applicant's application for consideration under
the Department of Defense (DoD) Discharge Review Program (Special) (SDRP)
was examined by the Army Discharge Review Board (ADRB).  Based on the
review, the Secretary of the Army directed upgrade of the applicant's
discharge from Under Conditions Other Than Honorable to Under Honorable
Conditions (General), effective 16 June 1977, and new separation documents
were issued.

8.  On 3 April 1979, the ADRB notified the applicant that, after
reconsideration of his military records and all other available evidence,
it determined that his discharge was properly upgraded.  The ADRB also
advised the applicant that the previous upgrading of his discharge was re-
reviewed by the ADRB and affirmed the DoD SDRP discharge upgrade.

9.  On 9 December 1977, the applicant enlisted in the U.S. Army Reserve and
reentered active duty in the RA for a period of 3 years on 1 February 1978.
 He completed One Station Unit Training at the U.S. Army Field Artillery
Training Center, Fort Sill, Oklahoma, and was awarded MOS 13B (Cannon
Crewman).

10.  The applicant's military service records show that he reenlisted in
the RA for a period of 3 years on 6 August 1980; reenlisted for a period of
6 years on
13 January 1982; reenlisted again for a period of 6 years on 6 January
1986; and served continuously until his discharge on 29 December 1989.  The
highest grade he attained was staff sergeant/pay grade E-6.

11.  The applicant’s military service records document no acts of valor,
significant achievement, or service warranting special recognition.
12.  On 25 July 1988, the applicant was convicted at a General Court-
Marital convened by Headquarters, 8th Infantry Division (Mechanized)
(Germany), of conspiring to commit larceny of stereo equipment of a value
of over $100.00 and wrongfully receiving a pair of Polk speakers, a double
cassette player, one Pioneer or Technics Amplifier, a processor, and a
Pioneer Super Tuner III Cassette player of a value of over $100.00, which
property he knew to be stolen. He was sentenced to forfeit all pay and
allowances, reduction to the grade of E-1, confinement for 12 months, and
discharge from the service with a dishonorable discharge.  The sentence was
approved by the convening authority on
7 November 1988 and, except for that part of the sentence extending to a
dishonorable discharge, was ordered to be executed.

13.  On 4 August 1988, the applicant was transferred to the U.S. Army
Correctional Activity, Fort Riley, Kansas.

14.  On 20 October 1988, the Assignment Program Review Board, U.S. Army
Correctional Activity, Fort Riley, Kansas, met for the purpose of the
applicant's initial clemency, parole, and program review.  The Board
recommended clemency in the form of an upgrade of the applicant's discharge
from a Dishonorable Discharge to a Bad Conduct Discharge; relief of
forfeitures in the amount of the applicant's basic pay; and parole on or
about his parole eligibility date.

15.  On 21 November 1988, the commander of the U.S. Army Correctional
Activity, Fort Riley, Kansas, recommended approval of the applicant's
parole on or about his parole eligibility date of 24 January 1989 and
restoration of Basic Allowance for Quarters at the with-dependent rate;
however an upgrade of the applicant's discharge was not recommended.

16.  On 21 November 1988, by order of the commander of the U.S. Army
Correctional Activity (Fort Riley, Kansas), the unexecuted portion of the
approved sentence pertaining to forfeiture of all pay and allowances, as in
excess of $671.00 pay per month, was suspended, contingent upon the
execution of an allotment by the applicant in the amount of the Basic
Allowance for Quarters at the with-dependent rate being made payable to the
applicant's spouse, until
12 May 1989; at which time, unless the suspension was sooner vacated, the
unexecuted portion of the sentence pertaining to forfeiture of all pay and
allowances, as in excess of $671.00 pay per month, would be remitted
without further action.


17.  On 21 June 1989, the United States Army Court of Military Review
ordered corrections to Headquarters, 8th Infantry Division (Mechanized),
General Court-Martial Order Number 59, dated 7 November 1988, pertaining to
the applicant's court-martial.  The U.S. Army Court of Military Review
ordered that, to reflect the true proceedings at the trial of the
applicant, the order be corrected by deleting in the Specification of
Charge I the date "Jan 87" and substituting therefore the date "Jan 88";
adding the words "(the Specification was amended after the arraignment to
conform with the plea)"; and deleting in the Specification of the
Additional Charge the words "False swearing" and substituting therefore the
words "Obstruction of Justice."  Thereafter, on consideration of the entire
record, the United States Army Court of Military Review held the findings
of guilt and the sentence as approved by the convening authority correct in
law and fact, and affirmed the findings of guilt and the sentence.

18.  The applicant's records contain a copy of Headquarters, U.S.
Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth,
Fort Leavenworth, Kansas, General Court-Martial Order Number 424, dated
11 December 1989.  This document shows, in pertinent part, that the
applicant was a member of the Correctional Holding Detachment, U.S.
Disciplinary Barracks, Fort Leavenworth, Kansas, on excess leave without
pay.  This document also shows, in pertinent part, that the general court-
martial case pertaining to the applicant was finally affirmed and Article
71(c) having been complied with, the dishonorable discharge was ordered to
be executed.

19.  The applicant's records contain a copy of Headquarters, U.S.
Disciplinary Barracks, U.S. Army Combined Arms Center, Fort Leavenworth,
Kansas, Order 213-02, dated 21 December 1989.  This document shows, in
pertinent part, that the applicant was dishonorably discharged from the
Regular Army on
29 December 1989.

20.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows he was discharged on 29 December 1989 under the
provisions of paragraph 3-10 of Army Regulation 635-200.  Item 18 (Remarks)
of the DD Form 214 shows, in pertinent part, that the applicant had
continuous honorable active service from 1 February 1978 through 5 August
1980; from
6 August 1980 through 12 January 1982; and from 13 January 1982 through
5 January 1986.  This document also shows that, at the time of his
discharge, the applicant completed 10 years, 10 months, and 29 days of net
active service during this period.

21.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel),
in effect at that time, governs the separation of enlisted Soldiers on
active duty.  Chapter 3 (Character of Service/Description of Separation),
Section III Characterization of Service), paragraph 3-7a, 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, 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.

22.  Army Regulation 635-200, Chapter 3, Section III, paragraph 3-7b, in
effect at that time, 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.

23.  Army Regulation 635-200, Chapter 3, Section IV (Dishonorable and Bad
Conduct Discharge), paragraph 3-10 (DD Form 260A (Dishonorable Discharge
Certificate)), in effect at that time, provides that a Soldier will be
given a dishonorable discharge pursuant only to an approved sentence of a
general court-martial.  The appellate review must be completed and the
affirmed sentence ordered duly executed.

24.  Army Regulation 635-200, Chapter 3, Section IV, paragraph 3-11 (DD
Form 259A (Bad Conduct Certificate)), in effect at that time, provides 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.

25.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, section 1552, the authority under which this Board acts, the ABCMR is
not empowered to set aside a conviction.  Rather it is only empowered to
change the severity of the sentence and/or discharge imposed in the court-
martial process and then only if clemency is determined to be appropriate.
Clemency is an act of mercy, or instance of leniency, to moderate the
severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his dishonorable discharge
should be upgraded to an honorable discharge or general discharge under
honorable conditions because he had three good discharges during 13 years
of military service, he made one mistake, and has been punished for over 15
years for that mistake.

2.  The evidence of record shows that, after reentering the Regular Army on
active duty on 1 February 1978, the applicant's character of service was
honorable during his first enlistment when he completed 2 years, 6 months,
and 5 days active service before he was discharged for immediate
reenlistment.  The evidence of record also shows that his character of
service was honorable during the period of his first reenlistment of 6
August 1980 when he completed 1 year,
5 months, and 7 days active service before he was again discharged for
immediate reenlistment.  The evidence of record further shows that his
character of service was honorable during the period of his second
reenlistment of
13 January 1982 when he completed 3 years, 11 months, and 5 days active
service before he was once again discharged for immediate reenlistment.
Moreover, these three periods of honorable active service are documented on
the applicant's discharge document.  However, these three periods of
honorable active service do not mitigate the applicant's character of
service during the period of his last reenlistment (i.e., from 6 January
1986 through 29 December 1989).

3.  The evidence of record shows that the applicant’s trial by court-
martial was warranted by the gravity of the offenses with which he was
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, his rights were protected throughout the
court-martial process, and the discharge appropriately characterizes the
misconduct for which he was convicted.

4.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The ABCMR 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 length of service, grade at the time of the offense, disciplinary
history, and the seriousness of the offenses for which he was convicted,
clemency would not be appropriate in this case.  Therefore, in view of all
of the foregoing, there is insufficient evidence or argument provided that
warrants granting the applicant's request to upgrade his discharge.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the ABCMR, or it must otherwise satisfactorily
appear, that the record was in error or unjust.  The applicant did not
submit any evidence that would satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 December 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
28 December 1992.  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

___PBF__  ___TMR_  ___JCR _  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.




                                         __Peter B. Fisher____
                                            CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20060007809                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061221                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |19891229                                |
|DISCHARGE AUTHORITY     |AR 635-200, Paragraph 3-10              |
|DISCHARGE REASON        |As a Result of Court-Martial - Other    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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