RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2007
      DOCKET NUMBER:  AR20070005665


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 to
honorable.

2.  The applicant states that he served honorably for over 4 years.  His
actions have been paid [for].  He was a combat engineer.  He was hurt in
the Army and has no health benefits.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); three certificates of training; two
certificates of achievement; a certificate of promotion; his high school
diploma; and three letters of appreciation.

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 enlisted in the Regular Army on 31 August 1983.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 62F (Lift and Load Equipment Operator).  He
was promoted to Specialist Four, E-4 on 1 December 1984.  He was assigned
to Headquarters and Headquarters Company, 9th Engineer Battalion, Germany
on or about 18 January 1985.

3.  On 28 March 1985, the applicant received a letter of reprimand for
wrongful use of marijuana.

4.  On 13 August 1986, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for participating in a breach
of the peace.

5.  On 14 July 1988, the applicant was convicted, in accordance with his
pleas, by a special court-martial of one specification of being absent
without leave (AWOL), from on or about 15 December 1986 to on or about 28
April 1988; four specifications of being disrespectful in language/language
or deportment towards a superior noncommissioned officer; two
specifications of wrongfully distributing marijuana in the hashish form (5
grams on or about 5 November 1986 and          8 grams on or about 20
November 1986); and one specification of wrongfully using marijuana in the
hashish form.  His approved sentence was to be confined for 4 months, to
forfeit $300.00 pay per month for 6 months, to be reduced to the grade of
Private, E-1, and to be discharged with a bad conduct discharge.

6.  The appellate action is not available.  Headquarters, U. S. Army
Training Center and Fort Dix Special Court-Martial Order Number 8, dated 10
March 1988 (sic), shows that the applicant’s sentence was affirmed.

7.  On 19 April 1989, the applicant was discharged with a bad conduct
discharge pursuant to his sentence by court-martial.  He had completed 4
years, 3 months, and 8 days of creditable active service and had 498 days
of lost time.

8.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, section 1552, the authority under which this Board acts, the Army
Board for Correction of Military Records is not empowered to set aside a
conviction.  Rather it is only empowered to change the severity of the
sentence imposed in the court-martial process and then only if clemency is
determined to be appropriate.  Clemency is an act of mercy, or instance of
leniency, to moderate the severity of the punishment imposed.

9.  Army Regulation 635-200 governs the separation of enlisted personnel.
Paragraph 3-7a provides that an honorable discharge is a separation with
honor and entitles the recipient to benefits provided by law.  The
honorable characterization is appropriate when the quality of the member’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.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had received a letter of reprimand for a drug offense and
an Article 15 prior to the court-martial that resulted in his discharge.
The misconduct that resulted in his discharge included a lengthy period of
AWOL and three drug offenses.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.  The
need for health care alone is not a basis that would warrant upgrading the
applicant’s discharge to either honorable or general based upon clemency.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__sap___  __eem___  __qas___  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.




                                  __Susan A. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070005665                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20071004                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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