RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          9 September 2004
      DOCKET NUMBER:  AR2004101381


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Linda D. Simmons              |     |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, in effect, that his bad conduct discharge (BCD)
be upgraded to a general discharge.

2.  The applicant states, in effect, that the type of discharge that he
received is too harsh considering the nature of his offenses.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 16 December 1986.  The application submitted in this case is
dated 3 November 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.  On 16 March 1983, he enlisted in the Army for 3 years in the pay grade
of
E-1.  He successfully completed his training as an infantryman.  He was
advanced to pay grade E-2 on 16 September 1983 and he was advanced to pay
grade E-3 on 16 March 1984.  On 12 December 1984, he was awarded the Army
Achievement Medal for meritorious service.

4.  On 12 December 1985, the applicant was tried and convicted, pursuant to
his pleas, by a special court-martial of being absent without leave from
27 September until 18 November 1985; from 1 July until 13 August 1985; and
14 August until 25 September 1985.  He was sentenced to a BCD, confinement
for 4 months and a forfeiture of pay in the amount of $426.00 per month for
4 months.

5.  On 14 February 1986, the convening authority approved only so much of
the sentence as provided for a BCD, confinement for 2 months and a
forfeiture of pay in the amount of $426.00 per month for 2 months and on
5 December 1986, Special Court-Martial Order number 64 was published by
Headquarters, United States Army Infantry Center and Fort Benning, Georgia,
indicating that his sentence had been affirmed and directing the execution
of his BCD.

6.  Accordingly, on 16 December 1986, the applicant was discharged under
the provisions of Army Regulation 635-200, chapter 3, as a result of a duly
reviewed and affirmed special court-martial conviction.  He had completed 3
years, 4 months and 13 days of total active service and he was furnished a
BCD.

7.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that
a soldier will be given a BCD pursuant only to an approved sentence of a
general or special court-martial.  The appellate review must be completed
and the affirmed sentence duly executed.

9.  Title 10, United Stated Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that 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
modify 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 facts of the case.

3.  The applicant’s contentions have been noted.  However, he has failed to
submit any evidence or argument to support his contention that the type of
discharge that he received is too harsh.  He was convicted by a special
court-martial of being AWOL on several occasions and it appears that the
type of discharge that he received appropriately reflects the character of
his service.

4.  In order to justify correction of a military record the applicant must
show 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 16 December 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 December 1989.  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

__jev___  __jea___  __lds___  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.



                                  James E. Vick
            ______________________
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004101381                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040909                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19861216                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 3                        |
|DISCHARGE REASON        |675                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  707  |144.7018.0000/SERIOUS OF OFFENSE        |
|2.  708                 |144.7100.0000/AWOL                      |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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