RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          27 January 2005
      DOCKET NUMBER:  AR20040000812


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 that of an honorable discharge.

2.  The applicant states, in effect, that he desires his discharge to be
upgraded so that he may be eligible for veteran's benefits for his family.

3.  The applicant provides a letter, dated 1 April 2004, written by his
cousin in his behalf.  The applicant's cousin states that the applicant is
in the process of moving from New Jersey to Charleston, South Carolina to
take guardianship of his teenage son and that an upgrade of his discharge
would be beneficial.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 December 1986.  The application submitted in this case is
dated 13 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.  On 3 March 1983, the applicant enlisted in the Delayed Entry Program
(DEP). On 26 April 1983, he was discharged from the DEP and he enlisted in
the Regular Army for 4 years.  Following completion of all required
military training, he was awarded military occupational specialty (MOS)
15D, Lance Crewmember. On 30 August 1983, he was assigned to Germany with
duty in his MOS.

4.  On 13 December 1985, the applicant was convicted pursuant to his pleas
by a special court-martial for willfully damaging property of the United
States (US) Government, of a value of less than $100.00; larceny of
Deutsche Marks and US currency, of a value in excess of $100.00; larceny of
private property, of a value in excess of $100.00, wrongful appropriation
of Government property, of a value of less than $100.00; and unlawful
entry, with intent to commit a criminal offense, on 8 and 10 August 1985.
He was sentenced to reduction from pay grade E-4 to pay grade E-1, a
forfeiture of $100.00 pay per month for 6 months, confinement at hard labor
for 100 days, and to be separated with a BCD.
5.  On 13 February 1986, the sentence was approved, except for that portion
of the sentence that pertained to the execution of a BCD.

6.  On 20 July 1986, the applicant was placed on excess leave pending
completion of the appellate review process.

7.  The US Court of Military Review consolidated the first two larceny
specifications, affirmed the remaining findings and approved the sentence.
The appropriate authority ordered the BCD to be duly executed.

8.  On 23 December 1986, the applicant was discharged in absentia under the
provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of
his conviction by a special court-martial.  His DD Form 214 (Certificate of
Release or Discharge from Active Duty) shows that he completed 3 years, 5
months, and 6 days of active military service and he had approximately 83
days of lost time due to being in military confinement.

9.  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.

10.  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 provided no mitigating factors to warrant clemency in
this case.  A denial of veteran's benefits does not establish a basis for
clemency.


3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 December 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
22 December 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__rjw___  __ecp___  __bkk___  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.



                                  Raymond J. Wagner
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000812                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050127                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19861223                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 3                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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