RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          26 April 2005
      DOCKET NUMBER:  AR20040004107


      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 that his bad conduct discharge (BCD) be upgraded
to a general discharge or to an entry level status (ELS) discharge.

2.  The applicant states, in effect, that he was advised his BCD would be
automatically upgraded after 6 months.  He lived in Europe for a number of
years, now he lives in the United States and the BCD has caused him
problems.

3.  The applicant provides in support of his request a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
9 February 1990.  The application submitted in this case is dated 1 July
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.  On 31 October 1986, the applicant enlisted in the Delayed Entry Program
(DEP).  On 26 November 1986, he was discharged from the DEP and he enlisted
in the Regular Army for 3 years.  Following completion of all required
military training, he was awarded military occupational specialty (MOS) 45D

(Self-Propelled Field Artillery Turret Mechanic).  On 11 May 1987, he was
assigned to Germany with duties in his MOS.

4.  On 1 March 1989, the applicant was convicted pursuant to his pleas by a
general court-martial for wrongfully distributing 0.80 grams of amphetamine
on
13 October 1988; wrongfully distributing 34.36 grams of marihuana in the
hashish form on 14 November 1988; wrongfully operating a privately owned
vehicle without a valid license and for wrongfully leaving the scene of an
accident in which the vehicle he was driving was involved on 5 January
1989.  He was sentenced to reduction from pay grade E-2 to pay grade E-1, a
forfeiture of all pay and allowances; confinement at hard labor for 1 year;
and to be separated with a BCD.

5.  On 31 May 1989, the sentence was approved, except for that portion of
the sentence that provided for the execution of a BCD.

6.  On 13 December 1989, the applicant was placed on excess leave pending
completion of the appellate review process.  After the United States Army
Court of Military Review affirmed the remaining findings and approved the
sentence, the appropriate authority ordered the BCD to be duly executed.

7.  On 9 February 1990, the applicant was discharged in absentia under the
provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of
conviction by a general court-martial.  His DD Form 214 shows he completed
2 years, 11 months, and 14 days of active military service and he had 57
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.

3.  The applicant is not eligible for separation with an ELS discharge.
The applicant's character of service is correct.  Only those Soldiers who
have not completed more than 180 days of creditable continuous military
service are eligible for separation with an ELS discharge.

4.  The US Army does not have, nor has it ever had, a policy to
automatically upgrade a discharge or to accept a request for the upgrade of
a discharge after a certain amount of time.  Each case is decided on its
own merits when an applicant submits a DD Form 149 (Application for
Correction of Military Record) requesting a change in discharge.  Changes
may be warranted if the evidence supports that the characterization of
service or the reason(s) for discharge, or both, were improper or
inequitable.  The applicant has provided no evidence to support either.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 February 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
8 February 1993.  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                 |AR20040004107                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050426                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19900209                                |
|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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