RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          26 April 2005
      DOCKET NUMBER:  AR20040002248


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 a general discharge.

2.  The applicant states that personal reference letters confirming that he
demonstrates good conduct are available upon request.

3.  The applicant provides in support of his request a "CERTIFICATE OF NO
PENAL RECORD," from the Commonwealth of Puerto Rico, dated 7 May 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 April 1989.  The application submitted in this case is dated 26 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 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.  Prior to the period of service under review, the applicant served
honorably in the Regular Army (RA) from 5 November 1980 to 2 June 1983,
until he was honorably separated for immediate reenlistment.

4.  On 3 June 1983, the applicant reenlisted in the RA for 4 years in pay
grade
E-4.  On 12 February 1986, he was assigned to Germany.

5.  On 10 February 1988, the applicant was convicted pursuant to his pleas
by a special court-martial for falsely writing three checks totaling $1,100
with the intent to defraud American Express and for the wrongful use of
cocaine.  Three charges of larceny were dismissed prior to pleas, but
subsequent to arraignment on multiplicity grounds.  He was sentenced to
reduction from pay grade E-4 to pay grade E-1, confinement at hard labor
for 100 days, and to be separated with a BCD.  The sentence to confinement
was deferred on 10 February 1988 and the deferment ended on 20 February
1988.
6.  On 2 March 1988, the applicant was transferred to the Personnel Control
Facility, Fort Knox, Kentucky.

7.  On 3 March 1988, the sentence was approved, except for that portion of
the sentence that provided for the execution of a BCD and that portion of
the sentence that provided for confinement at hard labor for 100 days was
modified to confinement at hard labor for 75 days.

8.  On 12 April 1988, from Fort Knox, Kentucky, the applicant was placed on
excess leave pending completion of the appellate review process.

9.  The applicant returned to Germany, on an unknown date, while in an
excess leave status.  On 12 June 1988, he was confined by German
authorities for possession and distribution of cocaine.  Effective 3 August
1988, he was returned to military control.  His leave was terminated and he
was attached to Headquarters Company, Frankfurt, Germany, and he was placed
in pretrial confinement at the Manheim confinement facility.  On 19
December 1988, the charges against the applicant (unspecified in the
available record) were dismissed due to the defenses motion for denial of
the applicant's right to a speedy trial.  On an unknown date, the applicant
was returned to military control at Fort Knox, Kentucky.

10.  On 2 February 1989, after the United States Court of Military Review
affirmed the findings and approved the sentence, the appropriate authority
ordered the BCD to be duly executed.

11.  On 17 February 1989, at Fort Knox, the applicant was placed on excess
leave pending the appellate review process.

12.  On 5 April 1989, 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 8 years, 2
months, and 29 days of active military service and he had approximately 62
days of lost time due to being in military confinement.

13.  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.
14.  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 document the applicant provided is not sufficient to establish a
basis to warrant clemency in this case.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 April 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 April 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

__mhm___  __kah___  ___lf___  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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002248                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050426                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19890405                                |
|DISCHARGE AUTHORITY     |AR635-200 , Chap 3                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6800                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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