RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 April 2007
      DOCKET NUMBER:  AR20060014775


      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            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 he was going through a bad time.  He was going
through a bad divorce and his father was in bad health.  He made the wrong
decision.  He has regretted it ever since.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 June 1983.  The application submitted in this case is
dated        24 September 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 enlisted in the Regular Army on 21 February 1978.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 64C (Motor Transport Operator).  He was
promoted to Specialist Four, E-4 on 1 November 1979.

4.  On 3 August 1981, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being absent from
his unit from on or about 6:00 a.m. 14 July 1981 to on or about 10:00 a.m.
15 July 1981.

5.  On 10 November 1982, the applicant was convicted, in accordance with
his pleas, of two specifications of being absent without leave (AWOL), from
on or about 6 July 1982 to on or about 4 August 1982 and from on or about 9
August 1982 to on or about 18 October 1982.  His approved sentence was a
bad conduct discharge, confinement at hard labor for 10 days, and reduction
to pay grade E-1.

6.  On 6 January 1983, the U. S. Army Court of Military Review affirmed the
approved findings of guilty and the sentence.
7.  On 16 June 1983, the applicant was discharged with a bad conduct
discharge pursuant to his sentence by court-martial.

8.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states an honorable discharge is a separation with
honor.  The honorable characterization is appropriate when the quality of
the Soldier’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.  Where
there have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).  A Soldier will
not necessarily be denied an honorable discharge solely by reason of a
specific number of convictions by court-martial or actions under the UCMJ
Article 15.  Conviction by a general court-martial or by more than one
special court-martial does not automatically rule out the possibility of
awarding an honorable discharge.  An honorable discharge may be furnished
when disqualifying entries in the Soldier’s military record are outweighed
by subsequent honest and faithful service over a greater period of time
during the current term of service.  It is the pattern of behavior and not
the isolated instance which should be considered the governing factor in
determination of character of service to be awarded.

9.  Army Regulation 635-220 states a general discharge is a separation from
the Army under honorable conditions.  It is issued to a Soldier whose
military record is satisfactory but not sufficiently meritorious to warrant
an honorable discharge.

10.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the UCMJ, the Board's
action may extend only to action on the sentence of a court-martial for
purposes of clemency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was going through a bad time, going
through a bad divorce, and his father was in bad health, all factors which
contributed to his wrong decision, has been considered.

2.  There is no evidence of record and the applicant provides none to show
he attempted to resolve his personal problems through acceptable military
channels. In addition, it is noted that the applicant did not go AWOL only
once.  He had a one-day unauthorized absence in July 1981.  He was court-
martialed for two specifications of lengthy AWOLs.  There is insufficient
evidence that would warrant upgrading his discharge.

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

__jev___  __phm___  __gjp___  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.




                                  __James E. Vick_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060024775                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070424                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19830616                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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