RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050003744


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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).

2.  The applicant states, in effect, that he knows that there is no error
in his court-martial case.  However, he would like to have his discharge
upgraded because he has been obedient to the UCMJ.

3.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 September 1989, the date he was discharged from active
duty.  The application submitted in this case was received on 11 March
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.  On 27 June 1984, the applicant enlisted in the Regular Army for a
period of
3 years.  He was trained in, awarded and served in military occupational
specialty (MOS) 13B10 (Cannon Crewmember).  The highest grade he attained
was pay grade E-4.

4.  On 21 October 1985, the applicant accepted nonjudicial punishment for
unlawfully breaking and entering the barracks room of a female Soldier,
with the intent to commit an indecent assault to a person not his wife, by
fondling her breast, kissing her and rubbing her legs, with the intent to
gratify his sexual desires.  His imposed punishment was a reduction to pay
grade E-1, a forfeiture of $310.00 pay per month for 2 months (suspended
for 6 months) and correctional custody for 30 days.

5.  On 15 June 1987, the applicant was convicted in accordance with his
pleas,  at a General Court-martial convened by Headquarters, Fort Bragg,
North Carolina, of the wrongful distribution of cocaine, of being absent
without leave from 13 to 19 March 1987, for the wrongful theft of mail and
for making and transferring a check in the amount of $200.00.  He was
sentenced to a BCD; a forfeiture of $400.00; pay per month for 18 months,
confinement for 18 months and a reduction to pay grade E-1.  The convening
authority approved the sentence and on 7 April 1988, the United States Army
Court of Military Review affirmed the findings of guilty and the sentence.
The applicant’s record does not indicate that he petitioned the United
States Court of Military Appeals for a grant of review.

6.  On 31 March 1988, a Report of Mental Status Evaluation found the
applicant was mentally responsible at the time of the offenses and
possessed the mental capacity to understand and participate in the court-
martial proceedings.

7.  On 18 September 1989, the applicant was discharged under the provisions
Army regulation 635-200, chapter 3, as a result of a court-martial with a
BCD.  He had completed 4 years and 25 days of creditable active military
service.

8.  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.

9.  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.  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.

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.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 September 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
17 September 1992.  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

__MKP  _  __LDS __  __MJF___  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.




                                                   Margaret K. Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003744                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]