RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              22 DEC 2005
      DOCKET NUMBER:         AR20050004109


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McPherson            |     |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 that his bad conduct discharge (BCD) be upgraded
to a general or honorable discharge.

2.  The applicant states, in effect, that while he does not dispute the
punishment that he received, one offense shows a lack of judgment at a
particular time in a person’s life and does not indicate the character of
the offender.  He goes on to state that he has been a model citizen since
his release, that he is currently seeking a degree in secondary education
and desires to be a role model for the young.  He continues by stating that
he desires to be of service to his country and the BCD prevents him from
doing so.  He also states that he is willing to undertake the unorthodox
step of signing an agreement to re-enter military service as a precondition
of receiving an upgrade of his discharge.

3.  The applicant provides a one-page statement of his position with his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 February 1996.  The application submitted in this case is
dated 10 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.  He enlisted in Brooklyn, New York, on 30 September 1992 for a period of
2 years and 16 weeks.  He underwent his one-station unit training at Fort
Benning, Georgia, and was transferred to Germany on 31 January 1993, for
duty as a fighting vehicle infantryman.

4.  On 8 October 1993, he was convicted by a general court-martial of the
wrongful use of marijuana, the wrongful possession of marijuana, larceny of
private property of a value less than $100.00, and unlawful entry with
intent to commit larceny.  His approved sentence was reduction to the pay
grade of E-1, confinement for 12 months, and a BCD.

5.  On 10 October 1995, General Court-Martial Order Number 97 was published
at Fort Dix, New Jersey, indicating that the applicant’s sentence had been
affirmed and directed that his BCD be executed.

6.  Accordingly, he was discharged with a BCD pursuant to a duly reviewed
and affirmed court-martial conviction on 12 February 1996.  He had served
2 years,
7 months, and 6 days of total active service and had 330 days of lost time
due to confinement.

7.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board 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.  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 type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

3.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to the seriousness
of his misconduct.

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 12 February 1996; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
11 February 1999.  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

____TK__  ____RD _  ___JM __  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.




            _____Ted Kanamine_________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004109                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/22                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1996/02/12                              |
|DISCHARGE AUTHORITY     |AR 635-200, CH 3, SEC IV/GCM . . . . .  |
|DISCHARGE REASON        |COURT MARTIAL                           |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |675/A68.00/BCD                          |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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