RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060010812


      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. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 Bad Conduct Discharge (BCD)
be upgraded; and that the Separation Program Designator (SPD) and Reentry
(RE) codes assigned in conjunction with his BCD be changed.

2.  The applicant provides no statement and no additional documentary
evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 July 1997, the date of his discharge.  The application
submitted in this case is dated 24 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.  The applicant's record shows he enlisted in the Regular Army and
entered active duty on 28 April 1993.  He was trained in, awarded, and
served in military occupational specialty (MOS) 92A (Material Storage and
Handling Specialist), and the highest rank he attained while serving on
active duty was private first class (PFC).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he
earned the National Defense Service Medal, Army Service Ribbon, and the
Army Achievement Medal during his active duty tenure.  It also shows that
he accrued 387 days of time lost during three separate periods of being
absent without leave (AWOL) and two periods of confinement.

5.  On 19 April 1996, a General Court-Martial (GCM) found the applicant
guilty, pursuant to his pleas, of the following five specifications of
violating Article 86 of the Uniform Code of Military Justice (UCMJ):
failure to repair on divers occasions between 15 May 1995 and 29 June 1995;
AWOL from on or about


18 through on or about 19 July 1995; AWOL from on or about 10 through on or
about 14 August 1995; AWOL from on or about 5 through on or about
29 December 1995; and AWOL from on or about 5 October through on or about
5 December 1995.

6.  The 19 April 1996 GCM also found the applicant guilty, pursuant to his
pleas, of violating the following Articles of the UCMJ by committing the
offenses indicated:  Article 95, by escaping from custody on or about 5
December 1995; Article 121, by wrongfully appropriating private property
valued over $100.00; Article 128, by unlawfully striking a male Soldier in
the head and face with closed fists on or about 18 August 1995; and Article
134, by wrongfully and unlawfully making a false statement under oath on or
about 13 June 1995.  The resultant sentence from the GCM Military Judge was
a forfeiture of all pay and allowances, confinement for 29 months, and a
BCD.  The GCM convening authority approved so much of the sentence that
provided for forfeiture of all pay and allowances, confinement for 13
months, and a BCD in Headquarters, 1st Cavalry Division, Fort Hood, Texas,
GCM Orders Number 36, dated 8 July 1996.

7.  On 10 December 1996, the United States Army Court of Criminal Appeals
affirmed the findings of guilty and the sentence as approved by the
convening authority pertaining to the applicant after having determined
that they were correct in law and fact.

8.  On 12 June 1997, GCM Orders Number 140, issued by Headquarters, United
States Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma,
directed, Article 71(c) of the UCMJ having been complied with, that the BCD
portion of the applicant’s approved sentence be duly executed.  On 9 July
1997, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant on the date of his separation,
9 July 1997, shows that he was separated with a BCD under the provisions of
chapter 3, 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 3
years, 5 months, and 6 days of creditable active military service, and that
he had accrued 387 days of time lost due to being AWOL and in confinement.


10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge.  It stipulates, in pertinent part, that a Soldier will be given
a BCD pursuant only to an approved sentence of a general or special court-
martial and that the appellate review must be completed and affirmed before
the sentence is ordered duly executed.

11.  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.

12.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating Soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  It states, in
pertinent part, that the SPD code of JJD was the appropriate code to assign
to Soldiers separated under the provisions of chapter 3, Army Regulation
635-200, by reason of
court-martial.  The SPD/RE Code Cross Reference Table provides for the
assignment of RE-4 for members separated with this SPD code.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  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 given his undistinguished
record of military service, and the seriousness of the offenses for which
he was convicted, clemency would be inappropriate in this case.

3.  By regulation, the SPD code JJD and RE-4 code assigned the applicant
were the proper codes to assign members separating under the provisions of
chapter 3, Army Regulation 635-200, by reason of court-martial.  As a
result,  these codes were and still are appropriate based on the authority
and reason for his separation.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 July 1997, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice
expired on 8 July 2000.  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

___HOF _  __WFC__  __DED__  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.




                                  _____Hubert O. Fry  _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010812                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/13                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1997/07/09                              |
|DISCHARGE AUTHORITY     |AR 635-200 C3                           |
|DISCHARGE REASON        |GCM-BCD                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1. 189   |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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