RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR20040010079


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 be upgraded.

2.  The applicant states that he is not a felon and did not communicate a
threat.  He continues that his sentence was too harsh and he strongly
suggested that he remain in the Army to continue his military career.  The
applicant further states that he would like his discharge upgraded so he
can join the police academy.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 July 1989.  The application submitted in this case is dated
11 January 2005.

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’s record shows that he enlisted in the Regular Army and
entered active duty on 14 May 1985.  He continuously served on active duty
until being separated with a bad conduct discharge on 27 July 1989.

4.  The applicant's discharge processing documents were not available in
his military service records.

5.  The applicant’s records show the highest rank he attained while serving
on active duty was specialist four.  His records also show that during his
tenure on active duty, he earned the Army Achievement Medal, the Army
Service Ribbon, the Marksmanship Qualification Badge with Rifle Bar (M-16)
and Expert Qualification Badge with Grenade Bar.

6.  The applicant’s record shows that he was absent without leave (AWOL)
for the period 12 August 1988 through 5 September 1988.

7.  On 12 August 1988, a special court-martial (SPCM) found the applicant
guilty pursuant to his pleas of one specification of violating Article 108
of the Uniform Code of Military Justice (UCMJ) by wrongfully damaging
Government property by breaking five tire stems with a wrench.  He was also
found guilty of wrongfully communicating a threat.  The sentence included a
bad conduct discharge, confinement for 30 days, forfeiture of $447 per
month for 3 months, and reduction to private/pay grade E-1.

8.  On 28 November 1988, in SPCM Order Number 24, issued at Headquarters,
8th Infantry Division (Mechanized), APO New York, the SPCM convening
authority approved the sentence and ordered all but the bad conduct
discharge be executed.

9.  On 13 January 1989, the applicant was directed to take involuntary
excess leave by the Acting Commander, Headquarters, U.S. Army Armor Center
and Fort Knox, Kentucky.  The commander stated his reasoning was based on
the applicant’s overall service record, the offenses of which the applicant
was convicted by court-martial, the result of trial, and recommendations by
the Staff Judge Advocate.  He further stated he did not consider the
applicant’s continued presence on active duty pending appellate review to
be productive or beneficial to the Army.

10.  On 17 March 1989, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence pertaining to the
applicant after having determined that they were correct in law and fact.

11.  The DD Form 214 issued to the applicant on the date of his separation,

27 July 1989, shows that he was separated with a bad conduct discharge
under the provisions of Chapter 3, Army Regulation 635-200, as a result of
court-martial.  It shows at the time of his separation, he had completed a
total of
4 years, 1 month, and 21 days of creditable active military service and had
accrued 24 days of time lost due to AWOL.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge; and provides that a Soldier will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial; and that the appellate review must be completed and affirmed
sentence ordered duly executed.


13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant’s trial by court-
martial was warranted by the gravity of the offenses of which he was
charged.  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, 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.  In light of the seriousness of the
offenses for which he was convicted, and absent the presentation of any
significant mitigating factors, the applicant’s overall record of service
does not support clemency in this case.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 July 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 26 July 1992.  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

___KS __  __BJE  __  __RTD _   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.




                                  ______Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010079                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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