RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 March 2005
      DOCKET NUMBER:  AR20040005102


      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 Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 his punishment for fighting was
too severe and cruel.  He further states that he has only one act of
misconduct in the service and has many service decorations and awards.

3.  The applicant provides a 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 17 July 1990.  The application submitted in this case is dated
25 June 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 12 July 1984 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 16S (Man Portable Air
Defense/Pedestal Mounted Stinger Crewmember).  The highest grade he held in
the military was specialist four/pay grade E-4 with a date of rank of 1 May
1986.

4.  A DA Form 4187 (Personnel Action) dated 25 January 1989 shows the
applicant was reduced to private first class/pay grade E-3.

5.  A DA Form 4126-R (Bar to Reenlistment Certificate) approved 21 April
1989 shows the applicant was barred from reenlistment after he received
five letters of indebtedness, four counselings for failure to repair, and
one counseling for disorderly conduct at the Noncommissioned Officer Club.
This form also confirms that he accepted nonjudicial punishment (NJP) under
Article 15, Uniform Code of Military Justice (UCMJ) on 6 January 1989 for
absenting himself without authority.

6.  On 19 July 1989, the applicant was convicted pursuant to his pleas by a
general court-martial of disobeying a lawful command and assaulting a Non-
commissioned Officer.  His sentence consisted of a reduction to the grade
of private/pay grade E-1, a forfeiture of all pay and allowances,
confinement at hard labor for eight months, and a bad conduct discharge.

7.  On 13 March 1990, the U.S. Army Court of Military Review (USACMR)
considered the applicant's appeal and determined that there was no merit or
basis to set aside the findings and sentence.  The USACMR affirmed the
finding of guilty and the sentence.

8.  On 17 July 1990, the applicant was discharged with a bad conduct
discharge pursuant to his court-martial sentence.  He had completed 5
years, 5 months, and 18 days of creditable active military service with 198
days of lost time due to confinement.

9.  The applicant's DD Form 214, Item 13 (Decorations, Medals, Badges,
Commendations, Citations, and Campaign, Ribbons Awarded or Authorized),
shows award of the National Defense Service Medal, Army Achievement Medal,
Good Conduct Medal (1st Award), Expert Badge Rifle M-16, Expert Badge
Pistol .45 Caliber, and Driver Badge with W-Bar.

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 contends that he had only one act of misconduct while in
the service and had many service decorations and awards.  However, his
records show that he received one Article 15 and was barred from
reenlistment for receiving five letters of indebtedness and five letters of
counseling.  The only personal decorations he was awarded were the Army
Achievement Medal and the Good Conduct Medal.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 July 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 16 July 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

__JS____  __LE____  __CD___  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. John Slone___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005102                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |10 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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