RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          24 February 2005
      DOCKET NUMBER:  AR20040002013


      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:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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 the following Items on his DD
Form 214 (Certificate of Release or Discharge from Active Duty) be
corrected:

      a.   Item 18 (Remarks) Excess Leave from "860207-861114."


      b.  Item 24 (Characterization of Service) "Bad Conduct Discharge
(BCD)."


      c.  Item 26 (Separation Code) "JJD."


      d.  Item 28 (Narrative Reason for Separation) "As a result of court-
martial, other."


      e.  Item 29 (Dates of Time Lost During This Period) "851025-860128."


2.  The applicant states that he did not receive a BCD, he was not court-
martialed and he had no lost time or excess leave.

3.  The applicant provides in support of his request a copy of his DD Form
214 and a statement reiterating the issues raised in paragraph one.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 14 November 1986.  The application submitted in this case is
dated 17 May 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 served honorably in the Regular Army (RA) from 23
November 1982 to 25 June 1986 until he was separated for immediate
reenlistment.  On
26 June 1985, he reenlisted in the RA for 3 years, his prior military
occupational specialty (MOS) 67N (Utility Helicopter Repairer) and in pay
grade E-4.



4.  On 25 October 1985, while assigned to Schofield Barracks, Hawaii, the
applicant was convicted pursuant to his pleas by a special court-martial
for:
unlawfully entering government quarters with the intent to commit larceny;
larceny of a First Hawaiian Bank OTTO card, code number slip, and various
identification cards all of a value of less than $100.00; and some amount
of United States (US) Government Food Stamps.  He was also convicted of
larceny of $200.00, in US currency from the First Hawaiian Bank account,
through the use of the stolen OTTO card on 19 August 1985.  He was
sentenced to reduction from pay grade E-4 to pay grade E-1, a forfeiture of
$413.00 pay per month for 4 months, confinement at hard labor for 4 months,
and to be separated with a BCD.

5.  The sentence was approved except for that portion of the sentence that
provided for confinement at hard labor for 4 months was modified to
confinement at hard labor for 110 days.  The record of trial was forwarded
to the United States Army Court of Military Review for appellate review.

6.  On 29 January 1986, the applicant returned to the United States and was
assigned to the Personnel Control Facility, Fort Ord, California.

7.  On 7 February 1986, he was placed in an excess leave status pending the
completion of the appellate review.  On an unknown date, the appropriate
authority ordered the BCD to be duly executed.

8.  The applicant's DD Form 214 shows that, on 14 November 1986, he was
discharged in absentia under the provisions of chapter 3, Army Regulation
635-200, with a BCD as a result of conviction by a special court-martial.
His
DD Form 214 shows he had completed 3 years, 8 months, and 17 days of active
military service and he had approximately 96 days of lost time due to being
in military confinement from 25 October 1985 to 28 January 1986.  He also
had
271 days of excess leave from 7 February to 14 November 1986.  He was
assigned a separation code of "JJD" and a RE code of RE-3, 3B and 3C.

9.  The applicant's record contains evidence of only one additional
offense.  He received nonjudicial punishment (NJP) for wrongful use of
marijuana during his prior period of service.  The NJP proceedings are no
longer contained in the available record.

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

12.  Pertinent Army Regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlisting and
processing into the RA and the eligibility for prior service applicants for
enlistment.  That chapter includes a list of Armed Forces RE codes and RA
RE codes.

13.  RE codes of RE-3, 3B and 3C applies to persons not qualified for
continued Army service, at the time of separation.

14.  A separation code of "JJD" applies to RA soldiers separated due to
court-martial, under the provisions of chapter 3, Army Regulation 635-200.


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 available evidence shows the applicant was discharged under the
provisions of chapter 3, Army Regulation 635-200, as a result of trial by
court-martial with a BCD.  He has provided no mitigating factors to warrant
clemency in this case.

3.  The applicant was also assigned a Separation Code of "JJD" and
RE-codes of RE-3, 3B and 3C.  These codes indicate he was not qualified for
continued Army service at the time of separation.  Both the assigned RE
codes and the separation code were, and still are, appropriate as shown on
the
DD Form 214.  He has submitted no evidence that these codes are in error or
should be changed.

4.  The applicant served in military confinement from 25 October 1985 to
28 January 1986, this time is considered lost time.  He was placed in
excess leave status from 7 February to 11 November 1986 until the appellate
process was completed and he was separated.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 November 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
13 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__ym____  __rw____  __jkr___  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.


                                  Yolanda Maldonado
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002013                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050224                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19861114                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 3                       |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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