RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 March 2004
      DOCKET NUMBER:   AR2003091613


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Arthur A. Omartian            |     |Member               |
|     |Mr. Robert L. Duecaster           |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 essence, that his bad conduct discharge
(BCD) be upgraded to that of an honorable discharge.

2.  The applicant states no contentions.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 21 November 1986.  The application submitted in this case is
dated 30 April 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 23 January 1980, the applicant enlisted in the U.S. Army Reserve
Delayed Entry Program (DEP).  On 19 February 1980, he was discharged from
the DEP and enlisted in the Regular Army for 4 years and training in
military occupational specialty (MOS) 72E (Telecommunications Center
Operator).  He completed the training requirements and he was awarded MOS
72E.  On 1 February 1982, he was assigned to Germany.

4.  On 24 June 1982, nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ), was imposed against
him for being disrespectful in language towards a staff sergeant and for
communicating a threat to kill the same staff sergeant on 31 May 1982.  His
punishment included reduction from pay grade E-4 to pay grade E-3; the
forfeiture of $100.00 pay for 1 month and 7 days of correctional custody at
the correctional custody facility.

5.  On 18 January 1983, the applicant was convicted pursuant to his pleas
by a general court-martial of wrongfully selling 7.36 grams of marijuana on
13 August 1982; of wrongfully selling 7.72 grams of marijuana on 6
September 1982; of wrongfully transferring 3 grams, more or less, of
marijuana on 16 September 1982; of wrongfully selling 8 grams, more or
less, of marijuana on 17 September
1982; and of wrongfully selling 19 grams, more or less, of marijuana on
30 September 1982 while on Wiley Barracks, Neu Ulm, Germany.  He was
sentenced to reduction from pay grade E-3 to pay grade E-1, the forfeiture
of all pay and allowances, to be confined at hard labor for 3 years, and to
be separated with a BCD.  He was transferred to the United States
Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.

6.  On 8 September 1983, that portion of the sentence that provided for the
forfeiture of all pay and allowances was suspended and the applicant
received $275.00 per month contingent upon satisfactory performance of duty
with the Food Service Division at the USDB.

7.  The applicant remained in military confinement from 18 January 1983 to
21 October 1985.  He was placed on excess leave pending completion of the
appellate review process on 22 October 1985.

8.  On 31 January 1986, the United States Court of Military Review affirmed
the findings and the sentence.  On 9 October 1986, the United States Court
of Military Appeals denied the applicant's petition for grant of review.

9.  On 21 November 1986, the applicant was discharged in absentia under the
provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of
conviction by a general court-martial.  His DD Form 214 (Certificate of
Release or Discharge from Active Duty) shows that he completed 3 years, 11
months, and 29 days of active military service and he had 397 days of lost
time due to being in military confinement prior to his normal end term of
service date and he had 612 days of lost time subsequent to his normal end
term of service date.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that
a soldier will be given a BCD pursuant only to an approved sentence of a
general or special court-martial.  The appellate review must be completed
and the affirmed sentence ordered duly executed.

11.  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 ABCMR is empowered to
change the severity of the sentence imposed in the court-martial process
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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant has established no basis for a grant of clemency.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 November 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 20 November 1989.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __aao___  __rld___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.



                 Fred N. Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091613                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040302                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19861121                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 3                       |
|DISCHARGE REASON        |A68.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6800                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |