RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 March 2005
      DOCKET NUMBER:  AR20040007716


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Robert Rogers                 |     |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 be
upgraded.

2.  The applicant states, in effect, that he made bad choices and now
realizes that he could have been a better soldier.  He continues by
apologizing for his actions which resulted in his discharge from active
service.

3.  The applicant further states that he was young and the sole reason he
joined the military was to get away from home.  He continues that many
times he made good choices which included serving his country and truly
believes he could have stayed in the military if he learned to be a true
leader instead of a follower.

4.  The applicant indicated that he discovered the error on 22 September
2003.  He requests that his failure to timely file be excused because he
admits that he made some bad choices in life; however, he has "grown-up to
be a man" and deserves a second chance in life.

5.  The applicant provides in support of his application a copy of page 2
of DD Form 293 (Application for Review of Discharge or Dismissal from the
Armed Forces of the United States), dated 13 August 2004; a copy of his DD
Form 214 (Certificate of Release or Discharge from Active Duty) with a
separation date of 28 January 1985; and a four-page self-authored letter,
dated 13 August 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 January 1985, the date of his separation from active
service.  The application submitted in this case is dated 13 August 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.  At the age of 18, the applicant enlisted in the Army on 7 April 1981
for a period of three years.  After completion of basic and advanced
individual training, he was awarded military occupation specialty 13B10
(Cannoneer) and assigned to Battery A, 2nd Battalion of the 92nd Field
Artillery in Germany.

4.  On 14 July 1982, nonjudicial punishment was imposed against the
applicant for being disrespectful in language towards his superior
noncommissioned officer on 24 June 1982.  His punishment consisted of
reduction to the rank of private/pay grade E-2 and seven days at the
Correctional Custody Facility.

5.  On 29 July 1982, nonjudicial punishment was imposed against the
applicant for being found asleep while at post on 24 July 1982.  His
punishment consisted of reduction to the rank of private/pay grade E-1, 14
days of extra duty, and 14 days of restriction to troop billets, place of
duty, mess hall on post, and place of worship.

6.  On 29 July 1982, the applicant submitted a Waiver of Right to Consult
with Counsel and to Trial by Special Court-Martial.  This document shows
that the applicant waived his right to consult with legal counsel and
accepted the proceedings under Article 15 of the Uniform Code of Military
Justice (UCMJ).  This document also shows that the applicant understood his
rights under Article 15, UCMJ, and understood his right to demand trial by
Special Court-Martial, punishment limitations, and potential uses of the
record of nonjudicial punishment in any subsequent court-martial.  The
applicant voluntarily did not demand a trial by Special Court-Martial and
signed the document in his own hand.

7.  DA Form 4126-R (Bar to Reenlistment Certificate), dated 13 August 1982,
shows that the bar to reenlistment action was initiated due to the
applicant's two nonjudicial punishments and nine incidents of misconduct.
This form further shows that the applicant was counseled on three separate
occasions; that he was furnished a copy of the Commander's Inquiry; that he
was counseled and advised of the basis of the action; and that he would not
submit a statement in his own behalf.  The applicant signed this form in
his own hand.

8.  On 28 February 1983, nonjudicial punishment was imposed against the
applicant for failure to obey a lawful order.  His punishment consisted of
forfeiture of $100.00, extra duty for 14 days and restriction for 14 days.

9.  Headquarters, 9th Infantry Division Special Court-Martial Order Number
120, dated 27 October 1983, shows that the applicant was convicted of two
specifications of failure to go to his place of duty at the time
prescribed, one specification of failure to obey an lawful command, one
specification for stealing five pounds of spaghetti, five dozen eggs, four
onions, one gallon of salad dressing, three pounds of shortening, five
pounds of bacon, four pounds of sausage, one straw broom, and one mop; one
specification of larceny of personal property; and one specification of
making a false official statement.  He was sentenced to confinement at hard
labor for four months, forfeiture of $382.00 per month for four months, and
to be discharged from the service with a bad conduct discharge.  On 27
October 1983, the convening authority approved the sentence.

10.  The applicant submitted a FS Form 1344 (Request for Voluntary Excess
Leave Without Pay and Allowances), dated 19 January 1984, wherein he
requested to be granted voluntary excess leave without pay while awaiting
affirmation of his special court-martial sentence by the convening
authority.  The request for voluntary excess leave was approved by the
convening authority on 27 January 1984.

11.  On 5 October 1984, United States Army Court of Military Review
affirmed the findings of guilty and the sentence.  Headquarters, U.S. Army
Field Artillery Center and Fort Sill Special Court-Martial Order Number 9,
dated 11 January 1985, affirmed the applicant's sentence which was adjudged
on 19 September 1983.  The applicant's sentence consisted of forfeiture of
$382.00 pay per month for four months, confinement for four months, and a
bad conduct discharge.

12.  The applicant was discharged from the Regular Army, effective 18
January 1985, under the provisions of Special Court-Martial Order 9, dated
11 January 1985 and furnished a Bad Conduct Discharge Certificate.  He
completed 3 years, 9 months, and 7 days of active duty.  Records also show
that he had 118 days of lost time due to confinement, 375 days of excess
leave, and was retained in the service for 396 days for convenience of the
government.

13.  Although the applicant submitted page 2 of a DD Form 293, there is no
evidence the applicant applied to and/or was considered by the Army
Discharge Review Board for upgrade of his discharge.

14.  Army Regulation 635-200 (Enlisted Separations) governs the separation
of enlisted soldiers on active duty.  Paragraph 3-11 states that a member
will be given a bad conduct discharge pursuant only to an approved sentence
of a general or special court-martial, after completion of appellate review
and after such affirmed sentence has been ordered duly executed.

15.  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 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.

16.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

17.  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 the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be
upgraded because he was young when he joined the military and made some bad
choices.

2.  Records show that the applicant was 19 years old at the time of his
first and second nonjudicial punishments and that he was 20 years old at
the time of his third nonjudicial punishment and when he was charged by
special court-martial.

3.  Records further indicate that the applicant was 21 years old at the
time he was convicted by the special court-martial and that he was 23 years
old at the time of his discharge.  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.

4.  Trial by court-martial was warranted by the applicant's pattern of
misconduct.  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.

5.  The applicant's record of service includes 118 days of confinement due
to a special court-martial conviction.  As a result, his Army service does
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  Therefore, he is not entitled to an honorable discharge.

6.  The applicant’s record of service that includes three nonjudicial
punishments, one special court-martial, and 118 days of confinement is not
satisfactory service.  Therefore, the applicant is not entitled to a
general discharge.

7.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

8.  After review of the applicant's entire record of service, it was not
considered sufficiently meritorious to warrant clemency in this case.
Given the seriousness of the offenses for which he was convicted and
confined, it is also clear that his service was not satisfactory, thus did
not meet the criterion for discharge under honorable conditions.
Therefore, his bad conduct discharge is equitable, and there is no basis
for changing his discharge as requested.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 January 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 January 1988.  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

___rr __   ___reb     __alr__  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.




                                  ______Allen L. Raub_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007716                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/24                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1985/01/28                              |
|DISCHARGE AUTHORITY     |SPCM Order # 9                          |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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