RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2005
      DOCKET NUMBER:  AR20040009926


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 (BCD) be upgraded
to honorable.

2.  The applicant states he regrets his actions which led to his discharge;
he regrets not being able to continue his military career; he has become a
productive citizen and is employed as a truck driver; he is married with 5
children; he is active in the community as a youth coach and as a member of
his church; and he has a clean criminal record.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge From Active Duty), a copy of his General Court-Martial
(GCM) Order, and a copy of a Department of the Army-imposed bar to
reenlistment under the qualitative management program (QMP).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 February 2000.  The application submitted in this case
is dated 10 November 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 served in the Regular Army for 15 years, 11 months, and
5 days, achieving the rank of Staff Sergeant (SSG/E-6).

4.  On 4 March 1998, the applicant was found guilty by a GCM for one
specification of violating a lawful general regulation, six specifications
of making a false official statement, and thirteen specifications of
larceny by credit card in the total amount of $27,667.85.  The applicant
pled guilty to all charges and specifications and was found guilty of same.
 He was sentenced to be discharged with a BCD; to be confined for 7 months;
to forfeit all pay and allowances; and to be reduced to Private (PVT/E-1).

5.  The applicant served his sentence to confinement.  On 17 June 1999, GCM
Order Number 115, Headquarters, US Army Armor Center and Fort Knox, Fort
Knox, Kentucky directed that the BCD be executed.  On 16 February 2000, the
applicant was discharged with a BCD.

6.  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 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.  Trial by court-martial was warranted by the gravity of the offenses
charged.  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.

2.  The Board fully considered all of the applicant's honorable service as
well as his infractions of discipline, the extent thereof, and the
seriousness of the offenses. The Board concluded that the discrediting
entries in his record were not outweighed by prior or subsequent service of
sufficient merit to mitigate his conduct or to warrant clemency.

3.  The Board fully considered the applicant's post-service conduct.  While
he is commended for the manner in which he has lived his life following his
discharge, his post-service accomplishments are not so meritorious as to
overcome his misconduct enough to warrant an upgrade in his discharge.

4.  In view of the foregoing, there is no basis to grant the applicant's
request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 February 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 February 2003.  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

__slp___  __rld___  __jrm___  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.



                                        Shirley L. Powell
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009926                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050913                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |20000216                                |
|DISCHARGE AUTHORITY     |AR 635-200 C3                           |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0000                                |
|2.                      |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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