RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 March 2008
      DOCKET NUMBER:  AR20070012568


      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          |
|     |Mr. William D. Powers             |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 an honorable discharge (HD).

2.  The applicant states, in effect, that he was defending himself against
an attacker, and he believes his defense lawyer did not represent him
properly.

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 26 September 1978.  He was trained in and awarded
military occupational specialty (MOS) 52D (Power Generator Equipment
Repairer), and private/E-2 (PV2) is the highest rank he attained while
serving on active duty.

3.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  His 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) and a Special Court-Martial (SPCM) conviction.

4.  On 29 March 1979, the applicant accepted NJP for being absent from his
appointed place of duty without authority and disobeying a lawful order
from a superior noncommissioned officer.  His punishment for these offenses
was a reduction to private/E-1 (suspended), forfeiture of $97.00, and 14
days of extra duty and restriction.
5.  On 3 August 1979, a SPCM found the applicant guilty, pursuant to his
pleas, of violating the following articles of the UCMJ by committing the
offenses indicated:  Article 121, by stealing the property of another
Soldier; and Article 128, by committing assault on another Soldier.  The
resulting approved sentence was a reduction to private/E-1, confinement at
hard labor for four months, forfeiture of $279.00 per month for four
months, and a BCD.

6.  On 7 November 1979, the United States Army Court of Military Review,
having 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.

7.  On 28 March 1980, SPCM Orders Number 65, issued by Headquarters, United
States Army Disciplinary Barracks, Fort Leavenworth, Kansas, directed that,
Article 71(c) of the UCMJ having been complied with, the BCD portion of the
applicant’s approved sentence be duly executed.

8.  On 29 May 1980, the applicant was separated with a BCD after completing
a total of 1 year, 4 months, and 28 days of creditable active military
service and accruing 98 days of time lost due to confinement/imprisonment.


9.  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.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of the regulation in effect
at the time of the applicant's discharge provided the policies and
procedures for separating members with a dishonorable or bad conduct
discharge.  It stipulated, 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.

11.  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 was unjust because he
was just defending himself against an attacker, and that he was not
properly represented by his lawyer were carefully considered.  However,
there is insufficient evidence to support these claims.  Additionally,
these claims are inconsistent with the inquiry conducted at this trial.
Before accepting his guilty pleas the court had to ascertain that the
applicant was in fact guilty of the charged offenses, had no valid defenses
to assert, and was satisfied with the quality of his representation by
defense counsel.

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 BCD, he also had accepted NJP for
misconduct.  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 offenses 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  __  __WDP _  __JLP___  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                 |AR20070012568                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1980/05/29                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |SPCM                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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