RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060007925


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |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 that his bad conduct discharge (BCD) be
upgraded.

2.  The applicant states, in effect, that he went to see a VA (Department
of Veterans Affairs) representative in Pensacola, Florida, before the
status of limitations was up on his BCD; however, he did not receive an
answer to the reason why his request was not answered.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 March 1983, the date of his discharge.  The
application submitted in this case is dated 30 May 2006 but was received
for processing on 7 June 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 on
15 November 1977, for a period 4 years, with an established expiration of
term of service (ETS) date of 14 November 1981.  The applicant successfully
completed basic combat training and advanced individual training at Fort
Sill, Oklahoma.  On completion of his OSUT (one station unit training), he
was awarded the military occupational specialty (MOS), 13B, Cannon Crewman.

4.  The applicant’s Army Discharge Review Board (ADRB) proceedings
indicates that he was a recipient of several Article 15(s), under the
Uniform Code of Military Justice (UCMJ), for insubordination, failure to
obey a lawful regulation, negligently failing to properly secure his
weapon, failing to go to his extra duty on four occasions, failure to go to
the magistrate court, for being absent without leave (AWOL) on several
occasions, and other disciplinary infractions.  The record does not show
what type of punishment was received.

5.  On 13 November 1980, the applicant was convicted by a summary court-
martial of being AWOL from 0805 hours to 1700 hours on 10 November 1980, of
being disrespectful toward a noncommissioned officer on two occasions, of
dereliction in the performance of his duties, and making or uttering a
false official statement.  His sentence consisted of a forfeiture of pay
and confinement at hard labor for 30 days.

6.  On 16 April 1982, he was convicted by a special court-martial of being
AWOL from 7 to 10 March 1981, from 6 July 1981 to 9 February 1982, bribery,
stealing and opening mail matter, and for receiving stolen mail matter.
His sentence consisted of a forfeiture of pay of $367.00 per month for 6
months, confinement at hard labor for 3 months, and a BCD.  The unexecuted
portion of his sentence was remitted effective 6 May 1982.

7.  Item 18 (Appointments and Reductions), of his DA Form 2-1 (Personnel
Qualification Record – Part II), shows that he was reduced on several
occasions from pay grade E-3 to E-2 and from pay grade E-2 to E-1.

8.  Item 21 (Time Lost), of his DA Form 2-1, shows that he was confined
from 13 November 1980 to 4 December 1980 (22 days), was AWOL from 7 to
9 March 1981 (3 days), was AWOL from 6 July 1981 to 14 November 1981
(132 days), was AWOL after his ETS from 15 November 1981 to 8 February 1981
(86 days) and was confined from 26 February 1982 to 5 May 1982 (69 days).

9.  On 20 August 1982, the United States Army Court of Military Review
affirmed the findings and sentence.

10.  On 31 March 1983, the applicant was discharged from the Army pursuant
to the sentence of a special court-martial and was issued a BCD.  He had
served 4 years, 6 months, and 9 days of creditable service and 157 days of
lost time due to AWOL and confinement prior to his scheduled ETS and 155
days lost time due to AWOL and confinement subsequent to his normal ETS.

11.  On 18 April 1989, the Army Discharge Review Board (ADRB) denied the
applicant's petition for an upgrade of his BCD.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-11 of that regulation
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 duly executed.

13.  Army Regulation 635-200, paragraph 3-7b, 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.

14.  Army Regulation 635-200, 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.

15.  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
Army Board for Correction of Military Records (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.  Trial by court-martial was warranted by the gravity of the offenses
charged.
Conviction and discharge were effected in accordance with applicable law
and regulation.

2.  The evidence of record shows that the applicant was convicted by a
special court-martial for AWOL on two occasions, for bribery, stealing and
opening mail matter, and for receiving stolen mail matter.  He was also a
recipient of a summary court-martial for several other disciplinary
infractions.  He was discharged pursuant to sentence of a special court-
martial and was issued a BCD when the sentence to BCD was affirmed.

3.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offenses.  He has not provided evidence
sufficient to mitigate the character of his discharge.

4.  The applicant applied to the ADRB for an upgrade of his discharge on
18 April 1989 and his application was denied.  There is no evidence to show
that he reapplied to the ADRB with new or additional evidence to support an
upgrade of his discharge.

5.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise 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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 18 April 1989.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 17 April 1992.  However,
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___  __DWT__  _REB __  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                 |AR20060007925                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070118                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19830331                                |
|DISCHARGE AUTHORITY     |AR 635-200 BCD CHAP 3-11                |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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