RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 November 2005
      DOCKET NUMBER:  AR20050004503


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 he be granted clemency and that his dishonorable
discharge be upgraded based on his post service conduct and
accomplishments.

2.  The applicant states that after his discharge and release from
incarceration, he completed his parole and became a registered nurse.  He
further states that he married and had two sons.  The applicant argues that
the mistakes he made as an enlisted Soldier were because he was young and
immature.

3.  The applicant provides eighteen letters of support with this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 November 1988, the date of his discharge from active
duty.  The application submitted in this case is dated 17 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.  The applicant's records show that he enlisted in the Regular Army on
19 March 1985 at the age of 20.  He completed one station unit training and
was awarded the military occupational specialty (MOS) 12B (Combat
Engineer).  The highest grade the applicant held was private first
class/pay grade E-3.

4.  Records show that nonjudicial punishment was imposed against the
applicant for failure to obey a lawful order and failure to go to his
appointed place of duty.  His punishment consisted of forfeiture of 172.00
dollars, 14 days extra duty, 14 days restriction, and reduction to
private/pay grade E-2.





5.  On 12 August 1987, the applicant pled guilty to and was convicted by a
General Court-Martial of the following offenses:  three specifications of
larceny, two specifications of conspiracy, and two specifications of being
absent without leave (AWOL).  The applicant was sentenced to reduction to
private/pay grade
E-1, a dishonorable discharge, total forfeiture of pay and allowances, and
confinement for 10 years.  Pursuant to a pretrial agreement, the convening
authority disapproved confinement in excess of 48 months.

6.  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
25 November 1988, under the provisions of chapter 3 of Army Regulation 635-
200 (Personnel Separations), with the separation code JJD and the Re-code
4.  This form further shows the applicant's character of service as
dishonorable.  Army Regulation 635-5-1 shows the separation code JJD
indicates separation of enlisted personnel as a result of court-martial.

7.  Based on the fact the applicant was separated with a dishonorable
discharge as a result of a General Court-Martial conviction, he is not
eligible to apply to the Army Discharge Review Board for upgrade of his
discharge.

8.  The applicant provided numerous letters of appreciation and support
from members of his family, friends, and employers.  Each of the authors
stated the applicant was a hard worker, dedicated, and extremely good at
his job as a registered nurse.

9.  Army Regulation 635-200 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.

10.  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.


11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his dishonorable discharge should be upgraded
because he was young and immature when he made his mistakes.

2.  Records show that the applicant was 23 years of age at the time of his
offenses.  There is no evidence that indicates the applicant was any less
mature than other Soldiers of the same age or lower who successfully
completed military service. Therefore, this contention is not sufficient as
a basis for a grant of relief.

3.  The applicant contends that his post-service conduct as a registered
nurse should be used as a basis to grant clemency in this case.  The
applicant's contentions regarding his post service achievements and conduct
were considered. The applicant's numerous letters of support and
recommendation were also considered.  However, good post service conduct
alone is not a basis for upgrading a discharge and does not mitigate the
fact the applicant committed serious acts of indiscipline.

4.  The applicant's records clearly show he pled guilty and was convicted
by a general court-martial of various offenses against the Federal
Government including larceny, conspiracy, and being AWOL.

5.  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.

6.  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.

7.  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.

8.  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.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 November 1988, 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 24 November 1991.
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

_SK____  _JTM___  _RLD_____  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.




                                   ___Stanley Kelley___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004503                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051115                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |1988/11/25                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Court-Martial                           |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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