RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 March 2005
      DOCKET NUMBER:  AR20040004357


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 clemency in the form of a
general (under honorable conditions) discharge be granted.

2.  The applicant states, in effect, that he was punished for what he did
and should be considered for a change to his discharge.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 August 1982.  The application submitted in this case is
dated 13 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.  The applicant enlisted in the Regular Army on 5 December 1979 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 11C (Indirect Fire
Infantryman).

4.  On 22 December 1980, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for
disobeying a lawful order and using disrespectful language towards a senior
Noncommissioned Officer.

5.  On 26 May 1981, the applicant was convicted, pursuant to his pleas, by
a special court-martial of failure to be at his prescribed place of duty
and unlawfully striking a senior Noncommissioned Officer.  His sentence
consisted of a forfeiture of $250.00 for six months, confinement at hard
labor for 75 days, and a bad conduct discharge.

6.  The applicant's appeal to the U.S. Army Court of Military Review
(USACMR) is missing.


7.  The applicant's records contain a Department of the Army, Headquarters
172nd Infantry Brigade, Fort Richardson, Alaska, Special Court-Martial
Order Number 15, dated 13 November 1981, that indicates his sentence was
affirmed.

8.  On 19 August 1982, the applicant was discharged with a bad conduct
discharge pursuant to his court-martial sentence.  He had completed 2
years, 6 months, and 64 days of creditable active military service with 198
days of lost time due to confinement.

9.  Army Regulation 635-200 (Enlisted Personnel) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 11 provides
policy for the separation of members with a dishonorable or bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial.  It states that discharge would be accomplished only after
the completion of the appellate process and affirmation of the court-
martial findings and sentence.

10.  In accordance with Title 10 of the United States Code, section 1552,
the authority under which this Board acts, the Army Board for Correction of
Military Records is not empowered to set aside a conviction.  Rather it is
only empowered to change the severity of the sentence imposed in the court-
martial process and then 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.  The applicant's trial by court-martial was warranted by the gravity of
the offenses for which he was charged and convicted.  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, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial.  The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.
However, given the seriousness of the offenses for which he was convicted
and his military record, it is determined that his service was not
sufficiently meritorious to warrant clemency in this case.


4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 August 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 18 August 1985.  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

__JRS___  __ JED__  __ MJF__  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.




                                  __ Mr. Joe R. Schroeder _
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004357                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |17 March 2005                           |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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