RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 June 2007
      DOCKET NUMBER:  AR20060017429


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald D. Gant                |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 a general, under honorable conditions discharge (GD) and
that his reentry (RE) code be changed to one that allows for his
reenlistment.

2.  The applicant states, in effect, at the time he was a minor and the
court ordered his record sealed.  He claims he altered his military
identification card to make his age 21.  He claims he has earned an
associate's degree in computer programming to support his family and is
unable to obtain employment because his discharge continues to show up on
background checks.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 March 1989, the date of his discharge.  The application
submitted in this case is dated 3 December 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 13 February 1987.  He was trained in and awarded
military occupational specialty (MOS) 13B (Cannon Crewman) and that
private/E-1 (PV1) is the highest rank he attained while serving on active
duty.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
during his active duty tenure, he received the Army Service Ribbon and
Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.
His record documents no acts of valor, significant achievement, or service
warranting special recognition.

5.  The applicant's record does reveal a disciplinary history that includes
his acceptance of non-judicial punishment (NJP) under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 December
1987, for breaking restriction and disobeying a lawful order.  His
punishment for these offenses was a forfeiture of $200.00 and 45 days of
restriction and extra duty.  His record also shows that on 4 January 1988,
he was arrested by civil authorities while in a duty status for harassing
communications and bad checks.  He was convicted and served 94 days in
civil confinement before being released to military authorities on 7 April
1988.

6.  On 7 April 1988, a general court-martial (GCM) found the applicant
guilty, pursuant to his pleas, of violating Article 121 of the UCMJ by
committing larceny of a military ID card on or about 16 August 1987; and of
violating Article 134 of the UCMJ by wrongfully altering another's military
ID card on or about 16 August 1987.  The resultant sentence from the
military judge was confinement for
15 months, forfeiture of all pay and allowances, and a BCD.

7.  On 30 September 1988, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence as approved by the
convening authority pertaining to the applicant after having determined
that they were correct in law and fact.

8.  On 28 February 1989, GCM Orders Number 246, issued by Department of the
Army, United States Army Correctional Activity, Fort Riley, Kansas,
directed, Article 71(c) of the UCMJ having been complied with, that the BCD
portion of the applicant’s approved sentence be duly executed.  On 8 March
1989, the applicant was discharged accordingly.  The DD Form 214 issued to
the applicant on the date of his separation shows that he was separated
with a BCD under the provisions of chapter 3, Army Regulation 635-200, by
reason of court-martial.  It also shows that at the time of his separation,
he had completed a total of
11 months and 20 days of creditable active military service, and that he
had accrued 409 days of time lost due to military and civil confinement.
It further confirms that based on the authority and reason for his
separation, he was assigned a separation program designator (SPD) code of
JJD and an RE-4 code.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge.  It stipulates, in pertinent part, that a Soldier will be given
a BCD pursuant only to an approved sentence of a general or special court-
martial and that the appellate review must be completed and affirmed before
the sentence is ordered duly executed.

10.  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.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating Soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  It states, in
pertinent part, that the SPD code of JJD was the appropriate code to assign
to Soldiers separated under the provisions of chapter 3, Army Regulation
635-200, by reason of
court-martial.  The SPD/RE Code Cross Reference Table provides for the
assignment of RE-4 for members separated with this SPD code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his BCD should be upgraded and his RE
code should be changed in order for him to obtain employment and be
qualified to reenlist was carefully considered.  However, although his
inability to gain employment is unfortunate, this factor is not
sufficiently mitigating to support granting the requested relief.

2.  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 his rights were protected throughout the court-martial
process.

2.  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.  After a thorough and comprehensive review of the applicant’s
military service record, it is concluded that given his undistinguished
record of military service, and the seriousness of the offenses for which
he was convicted, clemency would be inappropriate in this case.

3.  By regulation, the SPD code JJD and RE-4 code assigned the applicant
upon his separation were the proper codes to assign members separating
under the provisions of chapter 3, Army Regulation 635-200, by reason of
court-martial.  As a result, these codes were and still are appropriate
based on the authority and reason for his separation.

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 should have discovered the alleged error or
injustice now under consideration on 8 March 1989, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice
expired on 7 March 1992.  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

__MKP__  __RDG __  __RCH__  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.




                                  _____Margaret K. Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060017429                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/06/14                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1989/03/08                              |
|DISCHARGE AUTHORITY     |AR 635-200 C3                           |
|DISCHARGE REASON        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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