RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             APRIL 27, 2004
      DOCKET NUMBER:    AR2004100306


      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. Jessie B. Strickland          |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Marla Troup                   |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 a general discharge.

2.  The applicant states that his discharge should be upgraded because it
was based on one isolated incident over 15 years of service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 20 February 1998.  The application submitted in this case is dated 30
June 2003.

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 limitation 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.  He initially enlisted in the United States Army Reserve (USAR) on
23 September 1980 for a period of 6 years.  On 30 March 1982, he enlisted
in the Regular Army for a period of 3 years.  He remained on active duty
through a series of continuous reenlistments.  He was promoted to the pay
grade of E-7 on 1 October 1993 and was assigned to Fort Benning, Georgia,
for duty as a senior drill sergeant.

4.  On 5 November 1995, he was convicted by a general court-martial of
18 specifications of larceny, twenty specifications of forgery, two
specifications of obstruction of justice and one specification of
solicitation to make a false official statement.  He was sentenced to a
dishonorable discharge, confinement for 7 years, forfeiture of all pay and
allowances and reduction to the pay grade of   E-1.

5.  The convening authority, in compliance with the pre-trial agreement,
approved the sentence but suspended the confinement in excess of 72 months
for 72 months.

6.  On 5 February 1997, the United States Army Court of Criminal Appeals
set aside the solicitation offense as being multiplicious and affirmed the
remaining charges.

7.  On 4 September 1997, while in confinement at the United States
Disciplinary Barracks, Fort Leavenworth, Kansas, the applicant's discharge
was upgraded from a dishonorable to a BCD.

8.  On 20 February 1998, the applicant was discharged with a BCD.  He had
served 14 years, 3 months and 1 day of total active service and had 2
years, 3 months and 11 days of lost time due to confinement by military
authorities.

9.  A review of the applicant's Official Military Personnel File (OMPF)
shows no other disciplinary action taken against the applicant during his
career and shows that he is a decorated combat veteran.  However, his
noncommissioned officer evaluation report (NCOER) covering the period from
August 1994 to July 1995 (his first NCOER as a drill sergeant) indicates in
part IVd, under leadership, that he received a "Needs Improvement" rating.
The accompanying bullet comments indicate that he set a bad example by
extorting money from his soldiers.

10.  His NCOER covering the period from August to November 1995 shows that
he received "No" ratings in part IVa under "Is honest and truthful in word
and deed" and "Maintains high standards of conduct on and off duty."  The
supporting comments indicate that his integrity was questionable and his
conduct on duty was not conducive to military lifestyle.  In Part IVd,
under leadership, he received a "Needs Improvement" rating.  The supporting
comments indicate that he failed to set the example by failing to follow
brigade and battalion directives and that he lacks the integrity to lead
soldiers.  In Part IVf, under responsibility and accountability he also
received a "Needs Improvement" rating.  The supporting comments also
indicate that he extorted money from his soldiers.  The rater gave him a
marginal rating in part V, under potential for promotion and/or service of
positions of greater responsibility.

11.  The senior rater gave the applicant the lowest ratings possible in
Part V and indicated that he cannot be trusted in word or deed, that he
lacks self discipline and that he requires close supervision.

12.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board is not
empowered to set aside a court-martial 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.  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 type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted by the Board.  However,
they are not sufficiently mitigating to warrant relief when compared to the
seriousness of his offenses and the fact that he violated the trust placed
in him as a senior noncommissioned officer and senior drill sergeant.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 February 1998; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 February 2001.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

fe ______  pm______  t______  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.




                 ___Fred Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100306                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040427                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |1998/02/20                              |
|DISCHARGE AUTHORITY     |GCM . . . . .                           |
|DISCHARGE REASON        |GCM                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |675/A68.00                              |
|144.6800                |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |