RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 August 2004
      DOCKET NUMBER:  AR2004100735


      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             |
|     |Mrs. Carolyn Wade                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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:

      a.  He served his full term of 3 years in the military and that as a
young and inexperienced Soldier he got mixed up in a racial issue (White
and Black Soldiers fighting amongst themselves).

      b.  He served 3 months in a "correction center" for fighting, but he
never fought; he just happened to be with Soldiers that did.

      c.  He realizes how immature he was and that, although he cannot
relive that part of his life, he has learned from his foolish mistakes.

      d.  He was told that after 6 months his military record [discharge]
would be upgraded to general or honorable.

      e.  He has been a construction worker all his life and he is now
applying for a security job, and they want his military records.

      f.  He served his country, supports the military 100 percent and
would appreciate his record being upgraded.

3.  The applicant provides in support of his application a self-authored
statement, dated 29 October 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 April 1980.  The application submitted in this case is
dated 26 October 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.  The applicant’s military records show he enlisted in the Regular Army
on 23 April 1976 for a period of 3 years.  Following completion of all
military training, he was awarded military occupational specialty (MOS) 11E
(Armor Crewman) and was assigned to Germany as his first permanent duty
station.

4.  On 23 August 1976, the applicant was promoted to the rank of private/E-
2 (PVT/E-2).  On 1 February 1977, the applicant was promoted to the rank of
private first class/E-3 (PFC/E-3).  On 1 September 1977, the applicant was
promoted to the rank of specialist/E-4 (SPC/E-4).

5.  On 1 May 1978, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice, for
twice failing to go to his appointed place of duty.  His punishment
consisted of reduction to pay grade private first class/E-3, (suspended
until 1 August 1978) and 14 days of extra duty and restriction.

6.  On 5 June 1978, the applicant accepted NJP for failing to go at the
time prescribed to his appointed place of duty and for disobeying a lawful
command of his superior commissioned officer.  His punishment consisted of
reduction to pay grade PFC/E-3 and 14 days of extra duty and restriction.

7.  On 8 September 1978, the applicant accepted NJP for being absent
without leave (AWOL) from 1 September to 2 September 1978.  His punishment
consisted of reduction to pay grade PVT/E-2, forfeiture of $97.00 pay per
month for 1 month, and 14 days of extra duty and restriction.

8.  On 18 April 1979, the applicant, appearing before a military judge
only, was tried by special court-martial for being AWOL from 16 November
1978 to 7 March 1979 and for setting fire to the door of an inhabited
dwelling, the property of the United States Army.  The applicant was found
guilty and sentenced to confinement at hard labor for 3 months, forfeiture
of $279.00 pay per month for 3 months, reduction to private/E-1, and a BCD.
 On 5 July 1979, the applicant's sentence was approved.  He was confined at
the United States Disciplinary Barracks (USDB), Fort Leavenworth, Kansas.

9.  The applicant completed his sentence to confinement and was attached to
the USDB Correctional Holding Detachment.  He was placed on excess leave
without pay pending completion of his appellate review.

10.  On 14 March 1980, the United States Army Court of Military Review
affirmed the approved findings of guilty and the sentence.  The BCD was
ordered executed.  Accordingly, on 23 April 1980, the applicant was
discharged from the Army with a BCD.  He was credited with 3 years, 5
months, and 26 days of active military service, 186 days of lost time, and
297 days of excess leave.

11.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 11, of that regulation, then in effect,
provided, in pertinent part, for separation of personnel with punitive
discharges.  It provides that a Soldier will be given a BCD pursuant to an
approved sentence of a general court-martial or special court-martial and
that the appellate review must be completed and the affirmed sentence
ordered duly executed.

12.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, Section1552, 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.  The Board 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.  While the applicant has realized the error of his ways and has learned
from his mistakes, his overall service record was not sufficiently
meritorious to warrant an upgrade of his discharge.  His acts of misconduct
(AWOL, setting an occupied dwelling on fire, etc.) and nonjudicial and
judicial punishments diminished the quality of his service below that
meriting a general or fully honorable discharge.

2.  The evidence of record does not support the applicant's contention that
he was advised his discharge would be automatically upgraded after 6
months.  Furthermore, the United States 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 request for a change in his
discharge.  Changes may be warranted if the Board determines that the
characterization of service or the reason for discharge or both were
improper or inequitable.  The Defense Discharge Review Standards
specifically state that no factors should be established that requires
automatic change or denial of a change in discharge.
3.  The evidence of record does not support the applicant's contention that
he got mixed up in a racial issue and served 3 months in a "correction
center" for fighting.  There is no indication in his military personnel
records that he was involved in a fight or was punished for fighting.

4.  The evidence of record shows 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.

5.  The evidence of record clearly shows that the applicant was adjudged
guilty by court-martial and that the convening authority approved the
sentence.  Court-martial convictions stand as adjudged or modified by
appeal through the judicial process.  Clemency is an act of mercy, or
instance of leniency, to moderate the severity of the punishment imposed.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 April 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 22 April 1983.  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___  __le____  __mvt___  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                 |AR2004100735                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040829                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19800423                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 11                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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