RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 January 2005
      DOCKET NUMBER:  AR2004106605


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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, reconsideration of his bad conduct
discharge, a new trial, and consideration.

2.  The applicant states

      a.  that a Spanish speaking person did not interview him, that his
prior service was not taken into consideration, and that it was his first
offense;


      b.  that he is a Spanish speaking person, does not know English, and
had to use the services of a bilingual person to submit his application.


      c.  that his due process of law to be fully notified of the charges
was breached because it was held in English without an interpreter to
inform him of the correct procedures and action.


      d.  that he was punished more than one way:


      1)  reduction from E4 to E1;

      2)  discharged with a bad conduct discharge; and

      3)  court-martial without the proper representation.

3.  The applicant also states, in effect, that his health is not good and
he has no funds to pay for medical expenses.

4.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) with a separation date of 2 March
1981, a copy of his DD Form 214 with a separation date of 11 February 1983,
and a self-authored statement, dated 9 March 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 11 February 1983, the date of his discharge.  The application
submitted in this case is dated 9 March 2004 and was received on 6 April
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 military records show he initially enlisted on 3 March
1977 for a period of four years.  He successfully completed basic combat
and advanced individual training and was awarded the military occupational
specialty 11B10 (light weapons infantryman).  The applicant was discharged
on 2 March 1981 after serving four years of active service characterized as
honorable.

4.  On 30 July 1981, the applicant reenlisted for a period of three years.

5.  On 22 March 1982, the applicant was convicted by special court-martial
(SPCM) for wrongfully having in his possession 23.86 grams, more or less,
of marijuana; for wrongfully selling marijuana; and for wrongfully
transferring marijuana.  His sentence consisted of forfeiture of $300 per
month for six months, confinement at hard labor for six months, reduction
to private/E-1, and to be discharged from the service with a bad conduct
discharge.

6.  On 13 May 1982, the convening authority approved only so much of the
sentence that provided for forfeiture of $300 per month for three months,
confinement at hard labor for 90 days, reduction to private/E-1, and
discharge from the service with a bad conduct discharge.

7.  On 14 January 1983, the applicant's sentence was affirmed and discharge
of the applicant was directed.

8.  On 11 February 1983, the applicant was discharged by result of a court-
martial with a bad conduct discharge.

9.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-
year statue of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, Section IV, establishes
policy 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.



11.  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 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 moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be
upgraded and that he should be given a new trial and consideration.

2.  The evidence 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.

3.  Any redress by this Board of the finality of a court-martial conviction
is prohibited by law.  The Board is only empowered to change a discharge if
clemency is determined to be appropriate to moderate the severity of the
sentence imposed.  As such, the Board is not empowered to set aside the
applicant's conviction and direct that he be tried by a new court-martial.

4.  The applicant did not submit any evidence in support of his request for
upgrade.  The applicant’s record of service was carefully considered.
However, given the seriousness of the offenses for which he was convicted,
it was not considered sufficiently meritorious to warrant clemency in this
case.  The applicant's entire record of service was considered.  There is
no record or documentary evidence of acts of valor, achievement, or service
that would warrant special recognition.  As a result, there is no
evidentiary basis upon which to support an upgrade of his discharge at this
time.

5.  Based on the foregoing, there is insufficient basis to upgrade the
applicant's discharge to honorable or to general under honorable
conditions.

6.  Applicant contends that his discharge should be upgraded because he has
no funds to pay for his medical expenses.



7.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  In addition, granting veteran's
benefits is not within the purview of the ABCMR and any questions regarding
eligibility for treatment and other benefits should be addressed to the
Department of Veterans Affairs.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 March 1981, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 1 March 1984.  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

___ecp__  ____bkk _  ___rjw __ 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.




                                  _____Raymond J. Wagner____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004106605                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050127                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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