RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 September 2005
      DOCKET NUMBER:  AR20050002755


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 his bad conduct discharge be upgraded based on
his military personnel file.

2.  The applicant states he has paid enough for his mistake by the loss of
his military career and his family. The applicant also argues that the
statute of limitations for applying to the ABCMR should be waived because
he is 8trying to obtain employment.

3.  The applicant provides no documentary evidence in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 October 1989, the date of his discharge from active
duty.  The application submitted in this case is dated 15 January 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 records show that he enlisted in the Regular Army on
28 September 1982.  He completed basic training and advanced individual
training and was awarded the military occupational specialty (MOS) 71L00
(Administrative Specialist).  The highest grade the applicant held was
sergeant/pay grade E-5.

4.  On 20 March 1989, the applicant pled guilty to and was convicted by a
General Court-Martial of the following offenses:  three specifications of
indecent assault and one specification of assault.  The applicant was
sentenced to reduction to private/ pay grade E-1, and a bad conduct
discharge.



5.  The applicant's records contain a memorandum from the Headquarters,
21st Support Command Office of the Staff Judge Advocate, dated 23 August
1989.  This memorandum shows the applicant's general court-martial was
reviewed by the colonel in the position of staff judge advocate.  The staff
judge advocate recommended the sentence be approved and the bad conduct
discharge be executed.  The convening authority approved the sentence on
23 August 1989 and directed a bad conduct discharge.

6.  This memorandum further shows the applicant withdrew his right to an
appellate review of the findings of the court-martial.

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged as a result of court-martial on 5
October 1989, under the provisions of chapter 3 of Army Regulation 635-200
(Personnel Separations), with the separation code JJD and the Re-code 3.
This form further shows the applicant's character of service as bad
conduct.  Army Regulation 635-5-1 shows the separation code JJD indicates
separation of enlisted personnel as a result of court-martial.

8.  The applicant is not eligible to apply to the Army Discharge Review
Board for upgrade of his discharge.

9.  Army Regulation 635-5-1 (Separation Program Designators) provides the
specific authorities (regulatory or directive), reasons for separating
Soldiers from active duty, and the SPD codes to be entered on the DD Form
214.  It states, in pertinent part, that the SPD code of JJD is the
appropriate code to assign to Soldiers who separated under the provisions
of chapter 3 of Army Regulation 635-200 as a result of court-martial.  The
SPD/RE Code Cross Reference Table included in the regulation stipulates
that the RE code assignment will be based on the Department of the Army
directive authorizing separation.

10.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge. Army Regulation 601-210
(Regular Army and Army Reserve Enlistment Program) covers eligibility
criteria, policies, and procedures for enlistment and processing into the
Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation
prescribes basic eligibility for prior service applicants for enlistment.
That chapter includes a list of armed forces RE codes, including RA RE
codes.  RE-3 applies to persons who are "not considered fully qualified for
reentry or continuous service at the time of separation, but
disqualification is waivable."

11.  Army Regulation 635-200 (Personnel Separations) provided for
separation of enlisted personnel with a dishonorable discharge pursuant to
an approved sentence of a general court-martial.  This regulation also
provided for separation of enlisted personnel with a bad conduct discharge
based on an approved sentence of a general court-martial or a special court-
martial imposing a bad conduct discharge.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

14.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

15.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded
because he has paid for his mistake.

2.  The applicant's records clearly show he was tried and convicted by a
general court-martial for various offenses against a female soldier.

3.  Trial by court-martial was warranted by the gravity of the offense
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.

4.  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.

5.  After review of the applicant’s entire record of service, it is clear
that his service did not meet the criteria for a general or an honorable
discharge.  As a result, there is insufficient basis for a grant of
clemency in the form of an honorable or a general discharge.

6.  Based on the foregoing, the applicant's character of service, RE code,
separation code, and his narrative reason for separation are correctly
shown on his separation document.

7.  The applicant also contends the statute of limitations for applying to
the ABCMR should be waived because he trying to obtain employment.
However, the ABCMR only waives the statute of limitations when it is in the
interest of justice to do so.  The applicant has not provided evidence
which shows that his discharge is in error or unjust; therefore, there is
insufficient basis for waiving the statute of limitations in this case.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 October 1989 the effective date of
his discharge.  Therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 4 October 1992.  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

_FE______  _LH____  _PS____  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.




                                    ___Lester Echols______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002755                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/29                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19891005                                |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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