RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 December 2007
      DOCKET NUMBER:  AR20070009183


      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. John N. Slone                 |     |Chairperson          |
|     |Ms. Marla J. N. Troup             |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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 Bad Conduct
Discharge (BCD).

2.  The applicant states, in effect, that he does not think his youth was
taken into consideration.  He states that he became involved with a
criminal element, which influenced his behavior and he became an alcoholic.


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 7 October 1980, at the age of 18 years and 3 months.
 He successfully completed One Station Unit Training at Fort Benning,
Georgia, and was awarded military occupational specialty (MOS) 11B
(Infantryman).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was advanced to private/E-2
(PV2) on 1 March 1981, and that this is the highest rank he attained while
serving on active duty.  Item 9 (Awards, Decorations & Campaigns) shows
that during his active duty tenure, he received the Army Service Ribbon,
Marksman Marksmanship Qualification Badge with Rifle Bar and Expert
Marksmanship Qualification Badge with Grenade Bar.  His record documents no
acts of valor, significant achievement, or service warranting special
recognition.

4.  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 four separate occasions, a Summary Court-
Martial (SCM) conviction, and a Special Court-Martial (SPCM) conviction.

5.  On 28 July 1981, the applicant accepted NJP for wrongfully possessing
marijuana.  His punishment for this offense was a reduction to private/E-1
(PV1), forfeiture of $116.00, and 14 days of extra duty and restriction.

6.  On 29 October 1981, an SCM found the applicant guilty of four
specifications of violating Article 91 of the UCMJ by being disrespectful
in language toward a superior NCO on three separate occasions, and for
disobeying the lawful order of a superior NCO.  The resulting sentence was
30 days confinement and forfeiture of $275.00.

7.  On 1 December 1981, the applicant accepted NJP for participating in a
breach of the peace.  His punishment for this offense was a forfeiture of
$50.00 and 14 days of extra duty and restriction.

8.  On 10 September 1982, the applicant accepted NJP for being
disrespectful in language toward a superior noncommissioned officer (NCO)
and for being absent from his appointed place of duty without authority.
His punishment for these offenses was a forfeiture of $128.00 and 14 days
of extra duty and restriction.

9.  On 6 April 1983, the applicant accepted NJP for six specifications of
failing to go to his appointed place of duty at the time prescribed.  His
punishment for these offenses was a forfeiture of $133.00 and 14 days of
restriction.

10.  On 17 June 1983, an SPCM found the applicant guilty, pursuant to his
pleas, of seven specifications of violating Article 86 of the UCMJ by
failing to repair on 6, 9, 10, 11, 12, and 13 April 1983; and by being
absent without leave (AWOL) from on or about 25 April through on or about
26 April 1983.  The resulting approved sentence was a BCD.

11.  On 22 September 1983, the United States Army Court of Military Review
affirmed the findings of guilty and sentence.

12.  On 8 February 1984, SPCM Order Number 25, issued by Headquarters,
United States Army Training Center and Fort Dix, Fort Dix, New Jersey,
directed, Article 71(c) of the UCMJ having been complied with, that the BCD
approved sentence be duly executed.

13.  On 8 March 1984, the applicant was discharged with a BCD after
completing a total of 3 years, 2 months and 19 of creditable active
military service and accruing 75 days of time lost due to AWOL and
confinement.

14.  There is no indication that the applicant petitioned the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within that
board's 15-year statute of limitations.

15.  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.

16.  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 was unjust because his
youth was not taken into consideration was carefully considered.  However,
there is insufficient evidence to support this claim.  The evidence of
record confirms the applicant successfully completed OSUT subsequent to his
enlistment, which is an indicator that he had the ability to serve
successfully in spite of his youth.

2.  By law, any redress by this Board of the finality of a court-martial
conviction 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 SPCM that
resulted in the applicant's BCD, he also had accrued an extensive
disciplinary record that included his acceptance of NJP on four separate
occasions and an SCM conviction.  His record documents no acts of valor,
significant achievement, or service warranting special recognition, and
given his undistinguished record of service, 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

__JNS___  __MJNT_  __TMR __  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.




                                  _____John N. Slone    ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070009183                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/11/DD                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1984/03/08                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C-M                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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