RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 May 2007
      DOCKET NUMBER:  AR20060016457


      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. William F. Crain              |     |Chairperson          |
|     |Mr. Donald L. Lewy                |     |Member               |
|     |Mr. Roland S. Venable             |     |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 makes no statement.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 May 1980.  The application submitted in this case is dated
27 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 16 October 1975.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 17C (Sound Ranging Crewman).

4.  On 1 October 1976, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for disobeying a lawful order
not to wear unauthorized headgear during duty.

5.  On 27 January 1977, the applicant was convicted, in accordance with his
pleas, by a general court-martial of unlawful entry, of larceny, and of
attempted larceny.  He was sentenced to be reduced to pay grade E-1, to be
discharged with a bad conduct discharge, to forfeit all pay and allowances,
and to be confined at hard labor for 18 months.

6.  On 26 July 1978, the U. S. Army Court of Military Review set aside the
findings and sentence in the applicant’s case and authorized a rehearing
because the military judge did not conduct a complete inquiry into the
terms and conditions of the pretrial agreement.  On 28 July 1978, appellate
government
counsel filed a Motion for Reconsideration of the decision, requesting that
the Court hold disposition of the applicant’s case in abeyance pending
resolution of the case of the applicant’s co-accused, Private R___, which
was pending before the U. S. Court of Military Appeals.

7.  In an Order dated 24 September 1979, the U. S. Court of Military
Appeals affirmed Private R___’s case.  On 5 October 1979, the U. S. Army
Court of Military Review, noting that Private R___ and the applicant were
tried in common, then found that the military judge’s inquiry in the
applicant’s case was sufficient.  The U. S. Army Court of Military Review
affirmed the findings of guilty and the sentence in the applicant’s case.

8.  On 23 May 1980, the applicant was discharged, with a bad conduct
discharge, pursuant to his sentence by court-martial.  He had completed 3
years and 4 months of creditable active service.  His DD Form 214
(Certificate of Release or Discharge from Active Duty) incorrectly
characterizes his discharge as “under other than honorable conditions.”

9.  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.

10.  Army Regulation 635-200 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.

11.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, 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 trial by court-martial was warranted by the gravity of
the offenses charged.  His conviction and discharge were effected in
accordance with applicable law and regulations and the discharge
appropriately characterizes the misconduct for which he was convicted.  The
applicant’s discharge has already been inadvertently upgraded with the
error on his DD Form 214 that characterizes his discharge as “under other
than honorable conditions” rather than “bad conduct discharge.”  There is
insufficient evidence that would warrant a further “upgrading” of his
discharge.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 May 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         22 May 1983.  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___  __dll___  __rsv___  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                 |AR2006i0016457                          |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070531                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19800523                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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