RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 February 2005
      DOCKET NUMBER:  AR20040000240


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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
under honorable conditions.

2.  The applicant states that he had honorable time in service 2 months
prior to his discharge.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 March 1989, the date of his discharge from active duty.  The
application submitted in this case is dated 19 April 2004.

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 limitations 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.  The applicant enlisted on 7 November 1985 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training and was awarded the military occupational specialty 94F10
(Hospital Food Service Specialist).

4.  The applicant's records show that the highest rank he attained while
serving on active duty was private first class/pay grade E-3.  While on
active duty, he was awarded the Army Service Ribbon and the Sharpshooter
Badge (M-16 Rifle).

5.  The applicant's service personnel records do not contain all of the
applicant's separation processing documentation.  However, the applicant's
records do contain the General Court-Martial Orders (GCMO) and the
appellate review of the general court-martial.



6.  On 2 February 1988, the applicant, while assigned to Fort Carson,
Colorado, received a bar to reenlistment certificate.  The company
commander cited the applicant's indebtedness and numerous counseling
statements as justification for the bar to reenlistment.

7.  Records show that the applicant was listed as absent without leave
(AWOL) for the period 13 August through 16 August 1988.

8.  On 13 August 1988, the applicant was apprehended by civilian
authorities in Colorado Springs, Colorado.  The applicant's records do not
show the specific charges for which he was taken into custody by civilian
authorities.  He was returned to military authorities at Fort Carson on 17
August 1988.

9.  On 22 August 1988, the applicant received nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for failure to go
to his appointed place of duty at the prescribed time on 1 August 1988 and
12 August 1988, and for using disrespectful language towards a
noncommissioned officer.  His punishment consisted of reduction to
private/pay grade E-2, forfeiture of $376 per month for two months, extra
duty for 45 days and 45 days of restriction to his place of duty, billets,
place of worship, and the dining facility.

10.  The applicant's records show that he appealed the nonjudicial
punishment he received on 18 August 1988.  However, an officer assigned to
the Fort Carson Office of the Staff Judge Advocate reviewed the UCMJ
proceedings and determined that they were conducted in accordance with law
and regulations and that the punishments imposed were not unjust or
disproportionate.

11.  On 31 August 1988, the applicant's duty status was changed to
confinement by military authorities because he was placed in pretrial
confinement pending trial by court-martial.

12.  On 8 September 1988, the applicant was convicted by a general court-
martial for wrongfully distributing 2.69 grams of crack cocaine.  He was
sentenced to a bad conduct discharge, forfeiture of $300 pay per month for
18 months, confinement for 18 months, and reduction to the grade of
private/pay grade E-1.  The convening authority suspended confinement and
forfeitures in excess of 15 months for 12 months with the provision of
automatic remissions.

13.  On 6 January 1989, the United States Army Court of Military Review
affirmed the findings and the sentence in the applicant's case.

14.  On 28 February 1989, the applicant was approved for parole by the
Chairman of the Army Clemency and Parole Board who directed that the
applicant be released from confinement and placed in a parole status
effective
31 March 1989.

15.  On 30 March 1989, GCMO Number 324 directed that the Bad Conduct
Discharge be executed.

16.  On 31 March 1989, the applicant received a bad conduct discharge under
the provisions of chapter 3 of Army Regulation 635-200, by reason of court-
martial.  He had completed 2 years, 9 months, and 19 days of creditable
active military service.  The applicant also had in excess of 200 days of
lost time due to AWOL and confinement.

17.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 3 provides
policy for the separation of members with a dishonorable or bad conduct
discharge pursuant to an approved sentence of a general or special court-
martial.  It states that discharge would be accomplished only after the
completion of the appellate process and affirmation of the court-martial
findings and sentence.

18.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

19.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10 of the 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant's trial by court-
martial was warranted by the gravity of the offenses for which he was
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which he was convicted.

2.  By law, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial.  The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.

3.  The applicant contends that he had honorable time in service two months
prior to his discharge.  However, his record of service is not satisfactory
in view of his court-martial and lost time due to AWOL and confinement.
Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's entire record of service was considered in this case.
However, given the seriousness of the offenses for which he was convicted,
it is determined that these factors are not sufficiently meritorious or
mitigating to warrant clemency in this case.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 March 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 March 1992.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jlp___  __tap___  __kwl___  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.



                                        Jennifer L. Prater
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000240                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050215                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19890331                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 3                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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