RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 January 2005
      DOCKET NUMBER:  AR20040000383


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that the vehicle the grand larceny
charge involved was a 1968 model and had no engine or transmission.  He
claims it was worth less than $500.00 and was certainly not worth enough to
support the resultant BCD.  He states that he fell in with the wrong crowd
and made a mistake, for which he has paid, and now has a spotless record
and government job.

3.  The applicant provides a self-authored statement and a character
reference letter from his church Pastor.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 December 1995.  The application submitted in this case
is dated 8 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 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.  The applicant’s record shows that he enlisted in the Regular Army for
five years and entered active duty on 21 May 1992.  He was trained in,
awarded and served in military occupational specialty (MOS) 45G (Fire
Control Systems Repairer) and the highest rank he attained while serving on
active duty was specialist (SPC).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
during his tenure on active duty, he earned the Army Service Ribbon,
National Defense Service Medal and Expert Qualification Badge with Rifle
Bar.  The applicant earned no individual awards and his record documents no
acts of valor, significant achievement or service warranting special
recognition.
5.  The applicant’s disciplinary history includes his receiving a General
Officer Memorandum of Reprimand (GOMOR) on 19 March 1993.  The basis for
the GOMOR was the applicant’s refusal to take a lawfully requested test to
measure the alcohol content of his breath on 16 January 1993, when the
officer who stopped him had a reasonable belief he was driving under the
influence of alcohol.

6.  On 10 November 1994, a general court-martial (GCM) found the applicant
guilty pursuant to his pleas of violating the following articles of the
Uniform Code of Military Justice (UCMJ) for the offenses indicated:
Article 108, by willfully damaging military property valued at less than
$100.00; Article 121, by stealing a motor vehicle valued at more than
$100.00; and Article 134, by unlawfully entering a Military Policy impound
lot at Fort Drum, New York.  The resultant sentence included a reduction to
private/E-1 (PV1), forfeiture of all pay and allowances, confinement for
six months and a BCD.

7.  On 13 February 1995, in GCM Order Number 3, issued at Headquarters,
10th Mountain Division (Light Infantry) and Fort Drum, Fort Drum, New York,
the GCM convening authority approved the sentence and ordered all but the
BCD portion executed.

8.  On  25 July 1995, the United States Army Court of Criminal Appeals
affirmed the findings of guilty and the sentence pertaining to the
applicant after having determined that they were correct in law and fact.

9.  On 13 November 1995, GCM Order 104, issued by Headquarters, United
States Army Garrison, Fort Dix, New Jersey, directed, Article 71c of the
UCMJ having been complied with, that the BCD portion of the sentence be
duly executed.  On 15 December 1995, the applicant was discharged
accordingly.

10.  The DD Form 214 issued to the applicant on the date of his separation,

15 December 1995, shows he was separated with a BCD under the provisions of
Chapter 3, AR 635-200, as a result of court-martial.  It also shows that at
the time of his separation, he had completed a total of 3 years, 2 months
and 2 days of creditable active military service and had accrued 143 days
of time lost due to confinement.
11.  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; and provides that a Soldier will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial; and that the appellate review must be completed and affirmed
sentence ordered duly executed.

12.  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.  Notwithstanding the applicant’s assertions to the contrary, the
evidence of record shows 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, any redress by this Board of the finality of a court-martial
conviction 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.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that his service was not sufficiently
meritorious to support clemency given his prior disciplinary history and
the seriousness of the offenses for which he was convicted.

4.  The character reference submitted by the applicant’s Pastor, which
attests to his good post service conduct, was also carefully considered.
However, while the applicant’s post service conduct is admirable, this
factor alone is not sufficiently mitigating to support clemency in this
case.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 December 1995.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
14 December 1998.  However, he 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

___LMD_  ___KAN_  ___JEA__  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.




            ____Kathleen A. Newman__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000383                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/25                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1995/12/15                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |GCM                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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