RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 December 2004
      DOCKET NUMBER:  AR2004106063


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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, an upgrade of his Bad Conduct
Discharge (BCD).

2.  The applicant provides no statement or documentary evidence in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 24 October 1991.  The application submitted in this case
is dated
9 February 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.  The applicant’s record shows that he enlisted in the Regular Army and
entered active duty on 15 July 1986.  He continuously served on active duty
until being separated with a BCD on 24 October 1991.

4.  The record further shows that the highest rank the applicant attained
while serving on active duty was specialist four (SP4).  It also shows that
during his tenure on active duty, he earned the Army Service Ribbon,
Overseas Service Ribbon, Army Achievement Medal (2), Driver and Mechanic
Badge, Marksman Qualification Badge with Rifle Bar and Expert Qualification
Badge with Grenade Bar.

5.  The applicant’s record further shows that he was absent without leave
(AWOL) on two separate occasions.  The first AWOL period was for 1 day on
19 January 1988 and the second period was for six days from 18 through 22
June 1988.
6.  On 30 August 1990, a general court-martial (GCM) found the applicant
guilty pursuant to his pleas of two specifications of violating Article 81
of the Uniform Code of Military Justice (UCMJ) by conspiring to commit
larceny and three specifications of violating Article 121 of the UCMJ by
committing larceny.  The resultant sentence included a BCD, confinement for
18 months, total forfeiture of all pay and allowances and reduction to
private/E-1 (PV1).

7.  On 14 November 1990, in GCM Order Number 67, issued at Headquarters,
8th Infantry Division, APO New York 09111-2108, the GCM convening authority
approved the sentence and ordered all but the BCD portion executed.

8.  On  4 April 1991, United States Army Court of Military Review affirmed
the findings of guilty and the sentence pertaining to the applicant after
having determined that they were correct in law and fact.

9.  On 17 October 1991, GCM Order 393, issued by Headquarters, United
States Army Correctional Brigade, Fort Riley, Kansas, directed, Article 71c
of the UCMJ having been complied with, that the BCD portion of the sentence
be duly executed.  On 24 October 1991, the applicant was discharged
accordingly.

10.  The DD Form 214 issued to the applicant on the date of his separation,

24 October 1991, shows that he was separated with a BCD under the
provisions of Chapter 3, AR 635-200, as a result of court-martial.  It also
shows that at the time of his separation, he had completed a total of 4
years, 1 month, and 14 days of creditable active military service and had
accrued 416 days of time lost due to AWOL and confinement.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies and
procedures for separating members with a dishonorable or bad conduct
discharge; and provides that a Soldier will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial; and that the appellate review must be completed and affirmed
sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant’s trial by court-
martial was warranted by the gravity of the offenses for which he was
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which he was convicted.
2.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.  In light of the seriousness of the
offenses for which he was convicted, and absent the presentation of any
significant mitigating factors, the applicant’s overall record of service
does not support clemency in this case.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 October 1991.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 23 October 1994.  However, he 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

__DJA__  __JLP___  __LE_  __  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.




            ____Jennifer L. Prater____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106063                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/14                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1991/10/24                              |
|DISCHARGE AUTHORITY     |AR 623-200                              |
|DISCHARGE REASON        |GCM-BCD                                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |189.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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