RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 September 2007
      DOCKET NUMBER:  AR20070002672


      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:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Laverne V. Berry              |     |Member               |
|     |Mr. Ronald D. Gant                |     |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).

2.  The applicant states, in effect, he made a mistake in his decision and
in his youth; however, his conduct and manner as a Soldier were
professional and he was a good Soldier.  He states that the offense that
led to his discharge was out of character and given he served his sentence,
which was severe, he requests his discharge be upgraded.  He claims he is
moving in a positive direction in his life and he has always regretted the
actions that cost him his military career.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army and
entered active duty on 3 May 1983.  His Personnel Qualification Record (DA
Form 2-1) shows he was trained in and awarded military occupational
specialty (MOS) 11C (Indirect Fire Infantryman), that he was promoted to
private first class (PFC) on 1 April 1984, and this was the highest rank he
attained while serving on active duty.  It also shows he was reduced to
private/E-1 (PV1) on 8 July 1985.  Item 41 (Awards and Decorations) shows
that he earned the Army Service Ribbon and Expert Marksmanship
Qualification Badge with Rifle Bar during his active duty tenure.  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

3.  On 8 July 1985, a General Court-Martial (GCM) found the applicant
guilty, pursuant to his plea, of violating Article 112a of the Uniform Code
of Military Justice (UCMJ) by wrongfully possessing 22.5 grams more or less
of marihuana, in the hashish form, with the intent to distribute the said
controlled substance.  The resultant sentence was reduction to PV1,
forfeiture of $400.00 a month for two months, to perform hard labor without
confinement for two months, and a BCD.

4.  On 10 March 1986, GCM Orders Number 18, issued by Headquarters, 7th
Infantry Division (Light) and Fort Ord, Fort Ord, California, directed
that, the provisions of Article 71(c) of the UCMJ having been complied
with, the BCD portion of the applicant’s approved sentence would be duly
executed.  On 2 May 1986, the applicant was discharged accordingly.

5.  The separation document (DD Form 214) issued to the applicant on 2 May
1986 shows that he completed a total of 3 years of active military service.


6.  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 would 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.

7.  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 contentions that his discharge should be upgraded
because he was a good Soldier, because he regrets his actions, and based on
the fact he served his severe sentence and has turned his life around was
carefully considered.  However, while his expression of regret and post-
service conduct are noteworthy, these factors alone are not sufficiently
mitigating to support an upgrade of his discharge given the severity of the
offense for which he was convicted.

2.  By law, any redress by this Board of the finality of a court-martial
conviction, after 1949 under the UCMJ, 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.

3.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  Given his
undistinguished record of service and the severity of the offense 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA  __  __LVB __  __RDG__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002672                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/18                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1986/05/02                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |GCM-BCD                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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