RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        FEBRUARY 1, 2005
      DOCKET NUMBER:  AR2004106242


      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. Walter T. Morrison            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. William D. Powers             |     |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 to
an honorable or a general discharge.

2.  The applicant states that he enlisted in the Army straight out of high
school at age 17 and that he wanted to serve his country as long as needed.
 He states that he was shipped out of a small town of about 625 people in
the state of Washington and that his first glance of the United States Army
was just what he wanted.  He states that he was going to be the best
mechanic that the Army ever had; however, he was sent to Panama City,
Panama, and that he was totally overcome with a feeling of freedom.  He
states that he began to commit a crime that was to change his life.  He
states that he was overtaken with the freedom that he was feeling and that
he did not want the feeling to end.  He states that the Criminal
Investigation Division charged him with uttering $3,000.00 worth of bad
checks and then he was court-martialed by the Army.  He states that he was
sent to the Fort Riley, Kansas, Correctional Facility where he spent 1 year
in confinement at hard labor for the crime that he committed.  He states
that he was guilty and he believes that he should have done the time.  He
also states that he does not harbor any hard feelings about his time in the
service or how it turned out.  He states that he believes that he is a
better man now for the lesson that he learned; however, he is now 38 years
old and still feeling the affects of his actions.  He states that he was
denied the right to purchase land through the “Veterans’ board” and that he
was denied the right to purchase a firearm because of his record.  He
states that he is an avid sportsman and that he “loves” the right to own
weapons.  He concludes by requesting that this Board grant a judgment that
would expunge his conviction or upgrade his discharge to a more favorable
one.

3.  The applicant provides in support of his application, a copy of his
Federal Bureau of Investigation identification record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 9 April 1985.  The application submitted in
this case is dated 26 March 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 limitations 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 29 June 1983, he enlisted in the Army in Seattle, Washington, with
parental consent, at age 17, for 3 years and training as a fighting vehicle
system mechanic.  He successfully completed his training as a Bradley
Fighting Vehicle System Mechanic.

4.  He was transferred to Fort Clayton, Panama, on 10 November 1983 and he
was advanced to the pay grade of E-2 on 29 December 1983.  He was advanced
to the pay grade of E-3 on 1 March 1984.

5.  On 25 June 1984, the applicant was convicted, pursuant to his pleas, by
a general court- martial of uttering, to the Army Air Force Exchange,
seventeen bad checks drawn upon the Fort Knox National Bank, made payable
to the Panama Area Exchange, in the total amount of about $2,975.00.  He
was sentenced to a BCD, confinement at hard labor for 1 year, a reduction
to the pay grade of E-1 and total forfeiture of pay.

6.  The convening authority approved the sentence as adjudged on 15 August
1984, and on 29 October 1984, the United States Court of Military Review
affirmed the findings and sentence as approved by the convening authority.

7.  Accordingly, on 9 April 1985, the applicant was discharged under the
provisions of Army Regulation 635-200, chapter 3, as a result of a duly
reviewed and affirmed general court-martial conviction.  He had completed
11 months and 23 days of total active service and he had approximately 288
days of lost time due to confinement.  He was furnished a BCD.

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 Board has noted the applicant’s contentions.  However, they are not
sufficiently mitigating to warrant relief when compared to the seriousness
of his offenses.  Additionally, in accordance with the applicable law, this
Board is not empowered to set aside a court-martial conviction.  It is only
empowered to change the severity of the imposed sentence if clemency is
determined to be appropriate.  Considering the numerous acts of misconduct
(seventeen bad checks), which resulted in his court-martial conviction,
clemency does not appear to be appropriate in this case.  However, the
applicant is not precluded from applying to the Unites States Pardon
Attorney concerning this matter.

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 9 April 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 April 1988.  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

wtm_____  wdp____  jtm  _____  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.




                                  ____Walter T. Morrison__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106242                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050201                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19850409                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 3/ GCM CONVICTION               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  675  |144.6800.0000/BCD                       |
|2.  678                 |144.6803.0000/SERIOUS OFFENSE           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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