RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 April 2005
      DOCKET NUMBER:  AR20040004567


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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 be upgraded to a
general under honorable conditions discharge.

2.  The applicant states that he caught his wife having an affair at his
home and was defending himself.  He further states that he accepted a
pretrial agreement because he was young and scared at the time.

3.  The applicant provides two self-authored letters, a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty), a letter of
support from a member of the St. Peter House of Prayer Baptist Church, a
Certificate of License for the gospel ministry, an Army certificate of
promotion, and certificates of completion for college courses.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 July 1984, the date of his separation from active service.
The application submitted in this case is 19 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 Army Reserve on 8 November 1977 for a
period of 6 years in the military occupational specialty 76W10 (Petroleum
Supply Specialist).  He was ordered to active duty on 4 September 1979.  He
subsequently enlisted in the Regular Army on 4 November 1980 for a period
of
3 years.  On 6 August 1982, the applicant extended his 3-year enlistment to

5 years and 2 months.  The highest grade he held in the military was
specialist four/pay grade E-4.

4.  The applicant's DD Form 214, Item 13 (Decorations, Medals, Badges,
Commendations, Citations, and Campaign, Ribbons Awarded or Authorized),
shows award of the Army Service Ribbon, Good Conduct Medal (1st Award), the
Sharpshooter Badge Rifle M-16, and the Expert Hand Grenade Badge.

5.  On 1 August 1983, the applicant was convicted pursuant to his pleas by
a general court-martial for shooting another Soldier in the leg at close
range with pistol on 19 April 1983 while he was assigned to the 21st
Support Command in Germany.  He was also charged with damage to personal
property.  He was sentenced to a bad conduct discharge, forfeiture of all
pay and allowances, confinement for two years at the United States
Disciplinary Barracks, Fort Leavenworth, Kansas, and reduction to the grade
of private/pay grade E-1.

6.  The United States Army Court of Military Review affirmed the findings
of guilty and the sentence on 27 January 1984.  The applicant was also
given administrative credit for time spent in pretrial confinement.

7.  On 20 July 1984, the applicant was discharged with a bad conduct
discharge pursuant to his court-martial sentence.  He completed 2 years, 10
months, and 27 days of creditable active military service

8.  The applicant's complete records were not available and circumstances
surrounding the events that led to his bad conduct discharge under the
provisions of chapter 11, Army Regulation 635-200 (Personnel Separations –
Enlisted Personnel), were not in the available records.

9.  The applicant provided a self-authored letter, dated 14 July 2004 in
which he stated that he was requesting a general discharge.  He explained
that he understood that the Board did not consider this type of request,
but due to the difficult circumstances that led up to his court-martial, he
hoped the Board would consider his request.  The applicant continued there
was no excuse for his poor judgment and lack of cause for his actions.  He
concluded and stated that he was a minister at the St. Peter House of
Prayer, a loving husband, father of two, and a member of the community.

10.  The applicant provided a self-authored letter, dated 19 July 2004 in
which he stated that he took a pre-trial agreement for 18 months because he
was young and scared to go to trial.  He continued that he came home and
caught his wife having an affair and he was defending himself when the
individual charged at him.

11.  The applicant explained that he shot the applicant as they fought over
the gun and in the process he was also shot.  He further stated that he did
not bring this incident upon himself, but he was the only person charged
and felt he was defending and protecting home.



12.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for soldier's separation specifically allows such characterization.

13.  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 contends that his bad conduct discharge should be
upgraded to a general discharge because he was young and scared at the time
of the offenses for which he was charged.  Records show that the applicant
was 23 years old at the time of his offenses.  However, there is no
evidence that indicates that the applicant was any less mature than other
soldiers of the same age who successfully completed military service.
Records also show the applicant was 24 years old at the time of his
discharge.

4.  The applicant contends that he acted in self-defense and was the only
person charged in the incident.  However, the applicant's complete records
are not available and in the absence of evidence to the contrary, it is
presumed that all requirements of law and regulations were met and the
rights of the applicant were fully protected throughout the separation
process.


5.  The applicant’s post service achievements and conduct are noteworthy.
However, good post service conduct alone is not a basis for upgrading a
discharge, and upon review, the applicant's good post service conduct is
not sufficient to mitigate his indiscipline in the Army.

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

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 July 1984; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 19 July 1987.  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

__ji____  __reb___  __pbf___  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.

                                        John Infante
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004567                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050428                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19840720                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 3                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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