RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 May 2007
      DOCKET NUMBER:  AR20060016462


      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, in effect, that his bad conduct discharge be
upgraded to honorable.

2.  The applicant states he wonders if his discharge was changed from
dishonorable (sic) to honorable.  He was sent paperwork in the early 1980s,
but at that time he was frustrated and threw the paperwork away.

3.  The applicant provides a Standard Form 180 (Request Pertaining to
Military Records).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 November 1984.  The application submitted in this case is
dated                17 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 10 January 1977.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 17C (Field Artillery Target Acquisition
Specialist).  He was honorably discharged on 11 September 1979 and
immediately reenlisted on 12 September 1979.  He was promoted to Sergeant,
E-5 on 13 March 1980.

4.  On 13 September 1982, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
operating a vehicle while drunk.

5.  On 8 October 1982, the applicant accepted NJP under Article 15, UCMJ
for being absent from his unit from on or about 1 October 1982 to on or
about           4 October 1982.

6.  On 16 February 1983, the applicant was convicted, contrary to his
pleas, by a general court-martial of one specification of attempted
unlawful entry; one specification of unlawful entry; one specification of
assault; one specification of indecent assault; and one specification of
failing to obey an order.  He was sentenced to be reduced to pay grade E-1
and to be discharged with a bad conduct discharge.

7.  On 20 June 1984, the U. S. Army Court of Military Review affirmed the
findings of guilt and the sentence.

8.  On 2 November 1984, the applicant was discharged, with a bad conduct
discharge, pursuant to his conviction by court-martial.  He had completed a
total of 7 years, 9 months, and 20 days of creditable active service and
had 4 days of lost time.

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.  There is no evidence of record to show the applicant’s bad conduct
discharge was ever considered for an upgrade.

2.  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.
Considering that shortly before his court-martial he had twice accepted NJP
under Article 15, UCMJ, an upgrade of his discharge to either general under
honorable conditions or fully honorable is not warranted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 November 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on     1 November 1987.  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                 |AR20060016462                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070531                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19841102                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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