RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          11 January 2005
      DOCKET NUMBER:  AR2004106311


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 fully honorable discharge.

2.  The applicant states, in effect, that at the time of his court-martial
conviction he was 20 years old and did not realize that his military record
would affect him the rest of his life.  His court-martial conviction was
harsh.  He desires clemency and an upgrade of his discharge.  He was held
in pretrial confinement for 110 days, which is in violation of the Uniform
Code of Military Justice (UCMJ).  In accordance with the UCMJ, the maximum
number of days he could have been in pretrial confinement was 90 days.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 November 1990.  The application submitted in this case
is dated 13 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 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 1 April 1987, the applicant enlisted in the Regular Army for 3 years
and training in military occupational specialty (MOS) 95B (Food Service
Specialist). He completed the training requirements and was awarded MOS
95B.  On
26 August 1987, he was assigned to Fort Stewart, Georgia with duties in his
MOS.

4.  The highest pay grade the applicant achieved was pay grade E-4 on 1
June 1988.  He was reduced to pay grade E-3 on 3 May 1989, the specific
reason for this reduction is unknown.  However, on 30 May 1989, a bar to
reenlistment was initiated against the applicant and approved.  The basis
for the bar was a company grade nonjudicial punishment (NJP) the applicant
received for failure to follow orders.  The applicant did not appeal the
bar.  The NJP proceedings are no longer contained in the available record.

5.  On 25 January 1990, the applicant, in accordance with his pleas of
guilty, was convicted by a general court-martial of willfully disobeying a
lawful command and of being disrespectful in language towards a captain; of
willfully disobeying a lawful order given by the first sergeant; and of
resisting apprehension, all on
10 October 1989.  He was also convicted of escaping from custody and
resisting apprehension on 13 October 1989; of being absent without leave
(AWOL) from his unit from 13-16 October 1989; and of damaging military
property, escaping from custody and resisting apprehension on 3 November
1989.  He was sentenced to receive a BCD, confinement at hard labor for
9 months, the forfeiture of all pay and allowances, and to be reduced to
pay grade E-1.  He was credited with 104 days of pretrial confinement.

6.  On 19 March 1990, the sentence was approved.  The execution of the BCD
was suspended pending an appellate review.

7.  On 1 June 1990, the applicant was released from confinement and placed
on excess leave pending completion of the appellate review process.

8.  On 9 August 1990, the United States Army Court of Military Review
affirmed the findings and approved the sentence of the general court-
martial.

9.  There is no evidence available to indicate the applicant ever
petitioned the United States Court of Military Appeals for review of the
decision of the Army Court of Military Review.

10.  On 15 November 1990, the applicant was discharged in absentia under
the provisions of chapter 3, Army Regulation 635-200, with a BCD as a
result of his conviction by a general court-martial.  His DD Form 214
(Certificate of Release or Discharge from Active Duty) shows he had served
2 years and 11 months and
20 days of active military service and he had 168 days of lost time due to
being AWOL and in military confinement.

11.  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 ordered duly executed.

12.  The Manual for Courts-Martial (MCM) prescribes the rules for courts-
martial (RCM).  RCM 707(a) provides for a 120-day speedy-trial rule.  The
inception of the 120-day period is on the earlier date of "preferral of
charges" or "imposition of
restraint under RCM 304(a)(2)-(4)."  RCM 707(b)(3) provides for termination
of the 120-day speedy trial clock upon dismissal or upon release from
restraint.  The 120-day clock also stops ticking when "the accused is
brought to trial ... [meaning] arraignment under RCM 904."

13.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, Section
1552, the authority under which this Board acts, the ABCMR is empowered to
change the severity of the sentence imposed in the court-martial process
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.  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 applicant has failed to establish a basis for granting clemency in
his case.

3.  The applicant's contentions pertaining to the length of his pretrial
confinement relate to procedural matters that should have been finally and
conclusively adjudicated in the court-martial appellate process.  However,
it is noted that the applicant's belief that his pretrial confinement could
not exceed 90 days is in error.  The MCM provides, under the "speedy trial
rule," a 120-day period from preferral of charges" or "imposition of
restraint" to arraignment.  The applicant was placed in pretrial
confinement on 10 October 1989 and adjudged on 25 January 1990, a period of
only 3 months and 15 days.  Furthermore, he was credited with 104 days of
presentence confinement, well within the limit.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 November 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 November 1993.  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

__lds___  __jtm___  __cak___  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.


                                  Linda D. Simmons
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106311                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050111                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19901115                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 3                       |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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