RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          14 September 2004
      DOCKET NUMBER:  AR2004101471


      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. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 Honorable.

2.  The applicant states, in effect, that this was the only occurrence in 6
years of dedicated service.

3.  The applicant provided a copy of his DD Form 214, Certificate of
Release or Discharge from Active Duty, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 January 1984.  The application submitted in this case is
dated 3 December 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 enlisted for 6 years in the US Army Reserve on 13 July
1977.  On 4 August 1977, the applicant enlisted in the Regular Army for 3
years.  He underwent basic combat training at Fort Jackson, South Carolina,
and completed advanced individual training at Fort Lee, Virginia.  On
completion of all training, he was awarded the military occupational
specialty (MOS), 76Y, Unit Supply Specialist.

4.  The applicant attended the Basic Airborne Course and was awarded the
Parachutist Badge in December 1977.

5.  On 15 September 1978, the applicant received nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for having some amount of marijuana in his possession on 9
September 1978.  The imposed punishment was a reduction to the rank and pay
grade, Private, E-2 (suspended for 60 days), forfeiture of $150.00 a month
for one month, and extra duty for 30 days.  The applicant did not appeal
the punishment.

6.  The applicant’s record documents that the highest rank and pay grade
that he held on active duty was Specialist Four, E-4.  He was promoted to
the rank and pay grade on 1 August 1979.  The applicant was selected as a
Distinguished Trooper of the 82nd Airborne Division in January 1980.  He
received a letter of recognition for this achievement from the Commander,
82nd Airborne Division.

7.  The applicant was honorably discharged on 10 July 1980, for the purpose
of immediately reenlisting for 3 years in the Regular Army.  The applicant
selected the CONUS (Continental United States) Station of Choice
Reenlistment Option for a guaranteed assignment to Fort Ord, California.

8.  The applicant was awarded the Good Conduct Medal, for the period 5
August 1977 to 4 August 1980, in Permanent Orders 166-68, Headquarters,
82nd Airborne Division, dated 5 September 1980.

9.  On 5 April 1982, the applicant NJP, under the provisions of Article 15
of the UCMJ for disposing of Government property without authority.  The
imposed punishment was a reduction to the rank and pay grade, Private First
Class, E-3 (suspended until 4 July 1982), forfeiture of $171.00 (suspended
until 4 July 1982), and extra duty for 14 days.  The applicant did not
appeal the punishment.

10.  On 4 May 1982, the applicant received a Letter of Commendation from
the Commanding General, 82nd Airborne Division, for having achieved the
third highest score during the Forces Command, Commander's Company Level
Marksmanship Competition in his unit.

11.  On 28 January 1983, the applicant was convicted, pursuant to his
pleas, by a General Court-Martial that was convened by Headquarters, 82nd
Airborne Division, Fort Bragg, North Carolina, for stealing the personal
property, with a total value of $1640, the property of another soldier;
unlawfully entering the room of another soldier, without authority, with
intent to commit a criminal offense, larceny; and for conspiring with three
other individuals to commit an offense under the UCMJ, larceny.

12.  The applicant was sentenced to be confined at hard labor for 2 months,
to forfeit $200 per month for 2 months, and to be reduced to the rank and
pay grade of Private E-1, and to be discharged with a bad conduct discharge
on 28 January 1983.  The sentence was approved on 28 February 1983.

13.  The applicant was given excess leave and he departed from the
Processing Company, US Army Personnel Control Facility, on 29 April 1983.

14.  The sentence was affirmed pursuant to Article 66 of the UCMJ in
General Court-Martial Order Number 68, published by Headquarters, 7th
Infantry Division and Fort Ord, on 5 December 1983.  The provisions of
Article 71(c) having been complied with, the sentence was ordered executed.
 That portion of the sentence pertaining to confinement had been served.

15.  The applicant was discharged with a Bad Conduct Discharge on 5 January
1984, in the rank and pay grade, Private, E-1, under the provisions of Army
Regulation 635-200, Chapter 3, Section IV.  The applicant was given a
Separation Code of "JJD," Court Martial, Other.  On the date of the
applicant's discharge, he had completed 6 years, 3 months, and 2 days
active military service, with 252 days excess leave.

16.  Title 10, United States Code, section 1552, as amended does not permit
any redress by this Board which would disturb the finality of a court-
martial conviction.  The Board is empowered to address the punishment
and/or the characterization of service resulting from a court-martial
conviction.  The Board may elect to change the punishment and/or the
characterization of service 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.

17.  AR 635-200, paragraph 3-7, provides that an honorable discharge is a
separation with honor and entitles the recipient to benefits provided by
law.  The honorable characterization is appropriate when the quality of the
member’s service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Whenever there
is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  Court-martial was warranted by the gravity of the offenses charged,
discharge proceedings were accomplished in accordance with law and
regulations applicable at the time, and there is no indication of
procedural errors, which would tend to jeopardize the applicant's rights.
The discharge appropriately characterizes the misconduct for which the
applicant was convicted and with the applicant's overall record of service.

2.  Contrary to the applicant's contentions that this was the only
occurrence in 6 years of dedicated service, the evidence of record shows
that he received non-judicial punishment twice.  Once for possession of
marijuana and once for disposing of Government property without authority
before receiving the court martial that lead to his receiving a bad conduct
discharge from the Army.

3.  The evidence of record shows that the applicant had the potential to be
an outstanding soldier.  In some soldier tasks, he performed to a level
worthy of recognition by his division commander.  He earned a Parachutist
Badge, he was selected as a Distinguished Trooper in the 82nd Airborne
Division, he earned the Good Conduct Medal, and he received a Letter of
Commendation for his marksmanship skills from the 82nd Airborne Division
Commander.  But, the record shows, that he chose to engage in unlawful
activities that violated the trust and confidence that his leaders had in
him.  These unlawful activities earned him a general court martial and a
bad conduct discharge.

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.  The evidence of record failed to establish a basis upon which clemency
could be granted and upon which the severity of the sentence imposed could
be moderated with an upgrade of the applicant's Bad Conduct Discharge.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 January 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 4 January 1987.  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

__mdm___  __kah___  __rld___  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.




                                  Mark D. Manning
            ______________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004101471                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040914                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19840105                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 3, Section IV       |
|DISCHARGE REASON        |As a Result of Court Martial, Other     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  675  |144.6800                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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