RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20060010512


      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. Gerard W. Schwartz            |     |Director             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 an upgrade of his Bad Conduct Discharge (BCD) to
a general discharge.

2.  The applicant states that he went absent without leave (AWOL) for maybe
6 to 8 months.  He states he served his time, completed retraining, and
still received an unfair discharge.  He adds that he learned of other
Soldiers being AWOL for years and received a general discharge.

3.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 16 February 1983, the date he was discharged from active
duty.  The application submitted in this case is dated 17 July 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 3 November 1980, the applicant enlisted in the Regular Army.

4.  On 14 January 1981, the applicant accepted nonjudicial punishment (NJP)
for leaving his appointed place of duty without proper authority.  His
imposed punishment was a forfeiture of $116.00 pay and 7 days at a
Correctional Custody Facility (CCF).

5.  On or about 31 January 1981, the applicant was a suspect in the rape of
a female Soldier.  On an unknown date, the applicant was interviewed by a
Criminal Investigation Division agent for the offense.  During the
interview the applicant was told that if convicted he could go to jail for
20 years.

6.  On 4 February 1981, the applicant went AWOL.  The applicant went home
where he remained for 5 months until he was arrested by a civilian police
officer who discovered his military status while investigating the
applicant for a motorcycle accident in which he was involved.  On 12 July
1981, the applicant was returned to military control.

7.  On 2 October 1981, the applicant was tried on charges of rape and
desertion terminated by apprehension at a General Court-Marital convened by
U.S Army Training Center and Fort Jackson, Fort Jackson, South Carolina.
He was acquitted of the charge of rape and was convicted of desertion from
on or about 4 February to on or about 12 July 1981.  He was sentenced to a
Dishonorable Discharge, to forfeit all pay and allowances, and confinement
for a period of
2 years.  On 6 January 1982, the convening authority approved the sentence.
 The forfeitures applied to pay and allowances that were due on or after
the date of the action.  The record of trial was forwarded to the Judge
Advocate General of the Army for review by a Court of Military Review,
pending completion of appellate review.  The applicant was confined in the
United States Disciplinary Barracks, Fort Leavenworth, Kansas.

8.  The United States Army Court of Military Review affirmed the findings
in the case.  However, they were not convinced that the approved sentence
was appropriate.  They considered that the applicant was only 20 years old
and was away from home for the first time, that he was suspected of a
serious offense, and that he was frightened by the prospect of going to
jail for 20 years.  While the extenuating situation is not a defense for
his action, nor does it excuse it, the circumstances make his conduct
understandable.  Therefore, on 21 September 1982, the United States Army
Court of Military Review approved only so much of the sentence providing
for a Bad Conduct Discharge, confinement for one year, and total forfeiture
of pay and allowances.

9.  On 9 February 1983, the appropriate post-trial review was affirmed, the
sentence was modified, and the finding of guilty was ordered duly executed.
 That portion of the sentence pertaining to confinement was considered time
served.  The applicant was placed on excess leave for 133 days, without
pay.  There is no evidence that the applicant petitioned the United States
Court of Military Appeals for a grant of review.

10.  On 16 February 1983, the applicant was discharged under the provisions
of Army Regulation 635-200, Para 11-2, as a result of a court-martial with
a BCD.  He had completed 7 months and 11 days of creditable active military
service.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 11-2, 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.

12.  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 contentions were carefully considered and found to be
insufficient in supporting the requested relief.

2.  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.  There is no evidence in the applicant’s record nor has he
provided any compelling evidence to warrant further clemency in this case.

3.  After a thorough and comprehensive review of the applicant’s military
service record and based on the seriousness of the offenses for which he
was convicted, clemency would not be appropriate in this case.

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 should have discovered the alleged error or
injustice now under consideration on 16 February 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 February 1986.  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

___WFC_  ___EEM _  ___RMN_  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.




                                  _____William F. Crain______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/08                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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