RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 April 2005
      DOCKET NUMBER:  AR20040008042


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry J. Olson                |     |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 an
upgrade to his discharge be granted.

2.  The applicant states, in effect, that he was made out to be involved in
a theft ring during his court-martial proceedings and it was not the case.
He continues that prior to his misconduct he had a good military record
with no Uniform Code of Military Justice (UCMJ) actions.

3.  The applicant further states that he made a mistake and to give him a
chance to prove himself.  He states that an upgrade would help him obtain a
job on post in Germany to support his family.

4.  The applicant provides two Department of the Army Certificates of
Achievement; a Task Force Eagle (Bosnia-Herzegovina) Certificate of
Appreciation; and two Department of the Army Certificates of Training.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 June 2001.  The application submitted in this case is dated
5 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.  The applicant enlisted in the Regular Army on 21 January 1993 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 77F (Petroleum Supply
Specialist).

4.  On 3 December 1999, the applicant was convicted pursuant to his pleas
by a general court-martial of conspiracy to commit larceny, five
specifications of theft, and wrongful solicitation to receive stolen
property.  His sentence consisted of a forfeiture of all pay and
allowances, confinement for five months, and a bad conduct discharge.

5.  The affirmation of the U.S. Army Court of Military Review (USACMR) is
not available.  Department of the Army, Headquarters, U.S. Army Armor
Center and Fort Knox General Court-Martial Order Number 22, dated 16
February 2001, shows that the USACMR affirmed the finding of guilty and the
sentence.

6.  On 18 June 2001, the applicant was discharged with a bad conduct
discharge pursuant to his court-martial sentence.  He had completed 8 years
and 29 days of creditable active military service with 119 days of lost
time due to confinement.

7.  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.  His contentions relate to evidentiary and procedural
matters which were finally and conclusively adjudicated in the court-
martial appellate process and furnish no basis for recharacterization of
the discharge.

2.  By law, ABCMR 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 is seeking an upgrade to obtain a job.  However, the ABCMR
does not grant relief solely for the purpose of gaining employment or
enhancing employment opportunities.

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,
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 18 June 2001; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 17 June 2004.  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

__ RJW  _  __LCB  _   __ LJO _   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.




                                  ____ Raymond J. Wagner_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008042                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |21 April 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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