RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         4 October 2005
      DOCKET NUMBER:  AR20050002707


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carmen Duncan                 |     |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) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that while on active duty he didn’t
realize how his actions and behavior would have a negative effect on him,
his career in the military and his life ever since being separated from the
military with a BCD.  He states that over the past 20 years through many
life changes, challenges and events, he has realized his mistakes and how
they have affected his life forever. He further states that he is a
different person today, and is now asking for his discharge to be upgraded
so that he may put the pieces of his life back together with the help of
services and programs offered through Veteran's Services of Stearns County
and the Department of Veterans Affairs (VA) Medical Hospital.

3.  The applicant provides the following documents in support of his
application: Application for the Review of Discharge or Dismissal from the
Armed Forces of the United States (DD Form 293); Self-Authored letter,
dated 8 February 2005; and Separation Document (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 October 1986.  The application submitted in this case
is dated
10 February 2005.

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.  The applicant’s record show he enlisted in the Regular Army and entered
active duty on 20 March 1984.  He was trained in, awarded and served in
military occupational specialty (MOS) 11B (Infantryman), and the highest
rank he attained while serving on active duty was private first class
(PFC).




4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record reveals
a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ), and his conviction by a special court-martial
(SPCM).

5.  On 2 January 1985, the applicant accepted NJP for knowingly and
wrongfully using marihuana.  His punishment for this offense was 7 days of
extra duty.

6.  On 19 March 1986, a SPCM convicted the applicant violating Article 86
of the UCMJ by being absent without leave (AWOL) from 18 November to
22 November 1985, and for violating Article 121 of the UCMJ by attempting
to steal a portable cassette player valued at $150.95.  The resultant
sentence included a reduction private (E-1), confinement at hard labor for
30 days, forfeiture of $426.00 per month for two months and a BCD.

7.  On 3 October 1986, SPCM Order Number 201, issued by Headquarters United
States Army Armor Center and Fort Knox, Fort Knox, Kentucky,
directed, Article 71c of the UCMJ having been complied with, that the BCD
portion of the applicant’s approved sentence be duly executed.  On 30
October 1986, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant upon his separation shows he
was separated with a BCD under the provisions of chapter 3, Army Regulation
635-200, by reason of court-martial.  It also shows that at the time of his
separation, he had completed a total of 2 years, 5 months and 15 days of
creditable active military service and had accrued 55 days of time lost due
to AWOL and confinement.

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

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, in effect at the time,
provided the policies and procedures for separating members with a
dishonorable or bad conduct discharge.  It stipulated that a Soldier would
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 the affirmed sentence ordered duly executed.

11.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he is a changed person and now realizes
the mistakes he made during his military service was carefully considered.
However, while the applicant’s post service conduct is admirable, this
factor alone is not sufficiently mitigating to warrant granting the
requested relief at this late date.

2.  The evidence of record confirms 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 his rights were protected throughout the court-martial
process.

3.  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.

4.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that based on his disciplinary history and
the seriousness of the offenses for which he was convicted, clemency would
not be appropriate in this case.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 October 1986.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 29 October 1989.  He failed to 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

___MDM_  ___LCB _  __CD___  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.




                                  ____Mark D. Manning_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002707                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/10/04                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1986/10/30                              |
|DISCHARGE AUTHORITY     |AR 635-200 . . . . .                    |
|DISCHARGE REASON        |Chapter 3 Result of Court Martial       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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