RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060015915


      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. 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 that his bad conduct discharge be upgraded.

2.  The applicant states it has been over 20 years and he has been in no
trouble.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); and a training certificate, dated September
1997.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 October 1982.  The application submitted in this case
is dated     3 November 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 27 February 1978.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 11B (Infantryman).  He completed basic
airborne training and was assigned to the 82d Airborne Division, Fort
Bragg, NC as an ammunition supply storage specialist.  He was promoted to
Specialist Four, E-4 on 1 July 1979.  He was appointed an Acting Sergeant
on 15 April 1980.

4.  On 8 October 1980, the applicant was convicted, contrary to his plea,
by a general court-martial of stealing an M16A1 rifle, of a value of
$179.00; of stealing a sling, of a value of $0.73; and of stealing eight 30-
round magazines, of a value of $2.59 each.  He was sentenced to forfeit
$450.00 pay per month for two years, to be reduced to the grade of E-1, to
be confined at hard labor for two years, and to be discharged with a bad
conduct discharge.

5.  The U. S. Army Court of Military Review considered the applicant’s
request to set aside his conviction because of the failure of the convening
authority to take action until 181 days after the sentence was adjudged.
The Court noted the applicant’s case was not a model of administrative
efficiency but found no prejudice caused by the post-trial processing.  The
Court affirmed the findings of guilty and the sentence.  The applicant
apparently did not file for a petition for a grant of review.

6.  On 20 October 1982, the applicant was discharged with a bad conduct
discharge pursuant to his sentence by court-martial.

7.  In September 1997, the applicant completed a “CIC Radiation Safety in
Industrial Irradiator Operations COURSE.”

8.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that 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).  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.
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.

9.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, U. S. Code,
section 1552, the ABCMR is not empowered to set aside a court-martial
conviction.  Rather, it is only empowered to change the severity of the
sentence imposed in the        court-martial process and then only if
clemency is determined to be appropriate.  Clemency is an act of mercy, or
instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he has not been in trouble for the past
          20 years, along with his training certificate dated September
1997, have both been carefully considered.

2.  The applicant was an Acting Sergeant, serving as an ammunition supply
storage specialist, when he was convicted by a general-court-martial of
stealing, in part, a rifle.  Trial by court-martial was warranted by the
gravity of the offense charged.  Conviction and discharge were effected in
accordance with applicable law and regulations.  The discharge
appropriately characterizes the misconduct for which the applicant was
convicted, especially considering the position of trust the applicant was
in at the time of the offense.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 October 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         19 October 1985.  However, the applicant has
provided an argument and some evidence to support his request for a grant
of clemency based on good post-service conduct.  In view of the argument
and submitted evidence and since good post-service conduct could only
accrue subsequent to discharge from the Army, it is in the interest of
justice to waive 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:

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.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015915                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070510                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19821020                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]