RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             OCTOBER 5, 2004
      DOCKET NUMBER:     AR2004102664


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Larry C. Bergquist            |     |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 dishonorable discharge be upgraded to a
general discharge.

2.  The applicant states that the type of discharge that he received was
inequitable because it was based on an isolated incident.  He states that
there is no other adverse action following the incident and that his
conduct record and accomplishment during the time of his incarceration
should be considered.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 3 August 1983.  The application submitted in this case is dated
14 January 2004.

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 19 June 1978, he enlisted in the Army in Oklahoma City, Oklahoma,
for 4 years, in the pay grade of E-3.  He successfully completed his
training as a metal worker.  On 2 February 1980, he was promoted to the pay
grade of E-4 and he was transferred to Germany on 27 June 1980.

4.  On 21 April 1982, while in Germany, the applicant was convicted by a
general court-martial of rape.  He was sentenced to a dishonorable
discharge, confinement at hard labor for 5 years, a forfeiture of all pay
and allowances and a reduction to the pay grade of E-1.

5.  On 22 July 1982, the convening authority approved the sentence as
adjudged.  On 2 March 1983, the United States Court of Military Review
affirmed the findings and sentence.  On 22 July 1983, orders were published
by the
United States Army Disciplinary Barracks indicating that the sentence as
approved by the convening authority had been affirmed and would be duly
executed.

6.  Accordingly, he was dishonorably discharged pursuant to a court-martial
conviction, on 3 August 1983, under the provisions of Army Regulation 635-
200, chapter 3-10.  He had completed 3 years, 7 months and 15 days of total
active service.

7.  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.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

2.  The Board has noted the applicant’s contentions.  However, 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.

3.  While the Board understands the applicant's desire for this Board to
consider his conduct and accomplishment while he was incarcerated, that in
itself is not sufficiently mitigating to warrant an upgrade of his
discharge when considering the seriousness of his offense.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 August 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on

2 August 1986.  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

kn______  jm______  lb______  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.




            ___Kathleen A. Newman___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102664                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041005                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |19830803                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 3-10                     |
|DISCHARGE REASON        |GENERAL COURT-MARTIAL CONVICTION        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  928  |144.9500.0000/EQUITY OF DISCHARGE       |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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