RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20040009306


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 an upgrade of his Bad Conduct Discharge (BCD) to
an Honorable Discharge (HD).

2.  The applicant states he was told that after 6 months, and upon written
request, his BCD could be upgraded to an HD.  He further indicates he was
involved in a head on collision while on active duty and contracted TB.  He
wants his BCD upgraded to help with his medical benefits with the Veterans
Administration (VA) [now known as the Department of Veterans Affairs
(DVA)].  Additionally, he believes he was a good Soldier and could have
been an asset to the military.

3.  The applicant provides a handwritten statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 December 1996.  The application submitted in this case
is dated 13 October 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.  On 29 November 1990, the applicant enlisted in the Regular Army for a
period of 5 years.  He completed all required training and was awarded
military occupational specialty (MOS) 62B10, Construction Equipment
Repairman.

4.  On 20 October 1993, he was assigned to Germany with the 60th Ordnance
Company.

5.  The applicant was promoted to Specialist (E-4) on 1 June 1992.  He was
reduced for unknown reasons to Private First Class (E-3) on 25 July 1994.


5.  On 13 December 1994 [the court-martial order erroneously shows 1995],
the applicant was convicted by a General Court-Martial of committing rape
on 7 May 1994.  The sentence included reduction to pay grade E-1,
forfeiture of $200.00 per month for 12 months, confinement for 12 months,
and to be discharged with a BCD.  The sentence was approved and executed,
except for the part of the sentence extending to a BCD.

6.  On 9 February 1996, the United States Army Court of Criminal Appeals
affirmed the findings and sentence and further corrected the date the
sentence was adjudged to 13 December 1994.

7.  On 10 December 1996, the applicant was discharged with a BCD.  He
completed 5 years, 3 months, and 10 days of creditable active Federal
service.  He had awards of the Army Commendation Medal, the Army Good
Conduct Medal, the Army Service Ribbon, the Expert Marksmanship
Qualification Badge with Rifle Bar, and the Expert Marksmanship
Qualification Badge with Grenade Bar.  His DD Form 214 (Certificate of
Release or Discharge from Active Duty) shows he had 447 days of excess
leave from 21 September 1995 through 10 December 1996.  [Applicant had lost
time for confinement from 13 December 1994 through 20 September 1995 which
is not shown.]

8.  The Military Justice Act of 1983 (Public Law 98-209), provides, in
pertinent part, that military correction boards may not disturb the
finality of a conviction by court-martial.  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 change a discharge due to matters which should
have been raised in the appellate process, rather it is only empowered to
change the severity of the sentence imposed in the court-martial process 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 evidence of record does not support, nor has the applicant provided
any evidence to show that his discharge would be upgraded after 6 months
upon his written request.  Furthermore, the US Army does not have, nor has
it ever had, a policy to automatically upgrade discharges.  Each case is
decided on its own merits when an applicant submits a DD Form 149
requesting a change in discharge.

2.  While the Board is sympathetic, it does not upgrade discharges for the
purposes of establishing or obtaining eligibility for DVA benefits.

3.  Even though the applicant may have had good service and could have been
an asset to the military, that good service is diminished by his conviction
by a General Court-Martial for an extremely serious offense.  Therefore,
clemency is not warranted.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 December 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
9 December 1999.  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

__mkp___  __reb___  __lmb___  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.



                                        Margaret K. Patterson
                                  ______________________
                                            CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20040009306                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19961210                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 3. . . . .             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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