RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 September 2007
      DOCKET NUMBER:  AR20070002753


      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, an upgrade of his Dishonorable
Discharge (DD).

2.  The applicant states, in effect, he believes he was generally a good
Soldier and had received the Army Good Conduct Medal (AGCM).

3.  The applicant provides his separation document (DD Form 214) 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 27 December 1979.  He was trained in and awarded
military occupational specialty (MOS) 12B (Combat Engineer).

3.  Item 9 (Awards, Decorations & Campaigns) of the applicant's Personnel
Qualification Record (DA Form 2-1) shows that during his active duty
tenure, he received the AGCM.  There are no other awards or decorations
listed.

4.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1
shows he was promoted to specialist (SPC) on 1 January 1983, and that this
is the highest rank he attained while serving on active duty.  It also
shows that he was reduced to private/E-1 (PV1) on 25 January 1984.  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on the three separate occasions.
6.  On 30 October 1980, the applicant accepted NJP for willfully disobeying
a lawful order of a superior noncommissioned officer (NCO) and for failing
to go at the time prescribed to his appointed place of duty.  His
punishment for these offenses was a reduction to private/E-1 (PV1), a
forfeiture of $105.00, and 8 days of correctional custody (suspended).

7.  On 24 November 1980, the applicant accepted NJP for willfully
disobeying the lawful command of a superior commissioned office and
violating a lawful general regulation.  His punishment for these offenses
was forfeiture of $150.00 pay per month for two months and 30 days of
correctional custody.

8.  On 21 May 1982, the applicant accepted NJP for willfully disobeying the
lawful order of a superior noncommissioned officer.  His punishment for
this offense was reduction to private/E-2 (PV2), forfeiture of $144.00
(suspended), and
14 days of extra duty.

9.  On 13 January 1984, a General Court-Martial (GCM) found the applicant
guilty, pursuant to his pleas, of violating Article 134 of the UCMJ by
committing an assault with the intent to commit rape.  The resulting
sentence, approved by the GCM Convening Authority in Headquarters, 32nd
Army Air Defense Command GCM Orders Number 2, dated 23 January 1984, was a
reduction to PV1, forfeiture of $375.00 per month for 30 months,
confinement at hard labor for 30 months, and a DD.

10.  On 28 March 1984, the United States Army Court of Military Review,
found the approved  findings of guilty and the sentence correct in law and
fact, and having determined, on the basis of the entire record that they
should be approved, such findings of guilty and sentence were affirmed.

11.  On 23 July 1984, GCM Orders Number 545, issued by the United States
Disciplinary Barracks, United States Army Combined Arms Center, Fort
Leavenworth, Kansas, directed that, the provisions of Article 71(c) of the
UCMJ having been complied with, the DD portion of the approved sentence
would be duly executed.

12.  On 13 August 1984, the applicant was separated with a DD after
completing a total of 4 years and 16 days of creditable active military
service and accruing 231 days of time lost due to confinement.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-10 contains guidance on
separating members with a DD.  It states, in pertinent part, that a Soldier
will be given a DD pursuant only to an approved sentence of a GCM.  The
appellate review must be completed and the affirmed sentence ordered duly
executed.

14.  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 contention that his discharge should be upgraded
because he was generally a good Soldier, as evidence by his receiving an
AGCM was carefully considered.  However, there is insufficient evidence to
support this claim.

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 evidence of record confirms that in addition to the court-martial
that resulted in the applicant's DD, he had accrued an extensive
disciplinary record that included his acceptance of NJP on three separate
occasions.  His 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

___AJE  _  __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                 |AR20070002753                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/18                              |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |1984/08/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |GCM                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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