RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060015052


      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      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 to an honorable discharge (HD).

2.  The applicant states, in effect, that the court-martial charges that
led to his discharge were basically related to one episode, which was
primarily smoking marijuana.  The other absent without leave (AWOL)
infraction was for a mere two hours.  He believes the offenses that led to
his discharge were minor infractions and should not have resulted in his
being barred from receiving benefits from the Department of Veterans
Affairs (VA).  He further states that all of his infractions took place
after he incurred severe head trauma in 1982, at which time his mother
expressed her concern about the change in the applicant's mental condition
to the Army and requested he be evaluated.  He states that a January 1983,
medical evaluation indicates that he was generally making an excellent
recovery from what appeared to be rather significant head trauma.  He
claims he was continually being treated for this disability until his
separation.  He claims that had it not been for his severe head trauma, his
personality and characteristics would not have resulted in his committing
the offenses for which he was ultimately separated.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 November 1985, the date of his discharge.  The
application submitted in this case is dated 16 October 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 that he enlisted in the Regular Army and
entered active duty on 4 September 1980.  He successfully completed basic
combat training at Fort Benjamin Harrison, Indiana.  Upon completion of
AIT, he was awarded military occupational specialty (MOS) 73C (Finance
Specialist) and he was assigned to Fort Lewis, Washington.

4.  On 10 July 1981, while serving at Fort Lewis, the applicant accepted
non-judicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) for failing to go to his appointed
place of duty at the time prescribed and for willfully disobeying a lawful
order from a superior noncommissioned officer (NCO).  His punishment for
these offenses was 7 days correctional custody (Suspended), a forfeiture of
$116.00, and reduction to private/E-1 (Suspended).

5.  The applicant was reassigned to Germany, where he arrived for duty on
13 November 1982.  His record shows that during his active duty tenure, he
earned the Army Good Conduct Medal for the period 4 September 1980 through
3 September 1983, and the Army Service Ribbon.  His record documents no
acts of valor, significant achievement, or service warranting special
recognition.

6.  On 6 March 1984, the unit commander prepared a Bar to Reenlistment
Certificate (DA Form 4126-R) on the applicant.  He cited the applicant's
failure to manage his personal affairs (bad checks) and his being counseled
for being late to work as factors relevant to the action.  On 28 March
1984, the Bar to Reenlistment on the applicant was approved by the
appropriate authority.

7.  On 21 May 1984, the applicant accepted NJP for being absent from his
place of duty without proper authority on 15 May 1984.  His punishment for
this offense was a forfeiture of $381.00 per month for two months and 30
days restriction and extra duty.

8.  On 18 October 1984, a Special Court-Martial (SPCM) found the applicant
guilty, pursuant to his pleas, of violating Article 92 of the UCMJ by
violating a lawful general regulation by possessing a Mountain Dew can
intended for the use of smoking marijuana; and of violating Article 134 of
the UCMJ by wrongfully distributing marijuana, wrongfully using marijuana,
wrongfully possessing marijuana, and breaking restriction.  The resulting
sentence was confinement at hard labor for 2 months, reduction to private/E-
1 (PV1), forfeiture of $397.00 per month for 2 months, and a BCD.

9.  On 18 October 1985, SPCM Orders Number 74, issued by Headquarters,
United States Army Training Center and Fort Dix, Fort Dix, New Jersey,
directed, Article 71(c) of the UCMJ having been complied with, that the BCD
portion of the applicant’s approved sentence be duly executed.

10.  The applicant's Military Personnel Records Jacket (MPRJ) is void of
any medical treatment records that indicate he was suffering from a
medically or mentally disabling condition at the time of his discharge
processing.

11.  The applicant's MPRJ does contain a Disposition Form (DA Form 2496),
which confirms his medical records were reviewed by competent medical
authority on 29 October 1985, and that he was medically cleared for
discharge.

12.  On 19 November 1985, the applicant was separated with a BCD after
completing a total of 5 years and 26 days of creditable active military
service and accruing 46 days of time lost due to confinement.

13.  On 9 January 1987, the Army Discharge Review Board (ADRB), after
carefully considering the applicant's case, determined his discharge was
proper and equitable and that clemency was not warranted.  As a result, it
denied his petition to upgrade his discharge.

14.  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.

15.  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 contention that his BCD was based on minor infractions
and that all his infractions took place after he suffered severe head
trauma in 1982 was carefully considered.  However, these factors are not
sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms his disciplinary history dates back to
at least 10 July 1981, when he accepted NJP at Fort Lewis.  His record is
also void of any indication that he was suffering from a disabling medical
or mental condition at the time of his discharge processing, and he was
cleared for separation by competent medical authority.

3.  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 the discharge appropriately characterizes the
misconduct for which he was convicted.  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.  Given the
applicant's undistinguished record of service and the severity of the
offenses for which he was convicted, there is an insufficient evidentiary
basis to support clemency in this case.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 January 1987.
As a result, the time for him to file a request for correction of any error
or injustice to this Board expired on 8 January 1990.  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

___KLW _  __PHM__  __KSJ __  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.




                                  _____Kenneth L. Wright____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015052                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/10                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1985/11/19                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |SPCM                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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