RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            FEBRUARY 3, 2004                  
	DOCKET NUMBER:   AR2003090641

	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. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. Curtis L. Greenway		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 an honorable or a general discharge.

2.  The applicant states that he was young at the time that he committed the offenses, which lead to his discharge.  He states that he now realizes the error of his ways and his only wish is to have his discharge upgraded.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice, which occurred on 16 April 1984.  The application submitted in this case is dated 28 April 2003.  

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 limitation 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 21 January 1981, he enlisted in the Army in Denver, Colorado for 3 years in the pay grade of E-1.  He successfully completed his training as a chaparrel/redeye repairer.  He was promoted to the pay grade of E-2 on 21 July 1981.

4.  On 28 October 1981, he was transferred to Korea and on 21 January 1982, he was promoted to the pay grade of E-3.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 7 August 1982, for wrongfully absenting himself from the compound from which he was billeted in an off-duty status and not having in his possession a liberty pass.  His punishment consisted of a reduction to the pay grade of E-2.

6.  On 20 August 1982, the applicant was convicted pursuant to his pleas, by a special court-martial of violating a regulation, larceny and forgery. He was sentenced to a BCD, confinement at hard labor for 4 months, a forfeiture of pay in the amount of $367.00 per month for 4 months and a reduction to the pay grade of E-1.  

7.  The convening authority approved only so much of the sentence as provided for a BCD, confinement at hard labor for 3 months, a forfeiture of pay in the amount of $367.00 for 3 months and a reduction to the pay grade of E-1.

8.  On 3 November 1982, the applicant was placed in a voluntary leave status.  On 20 December 1983, his voluntary leave status was changed to involuntary excess leave.

8.  On 16 April1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3 as a result of a duly reviewed special court-martial conviction.  He had completed 3 years of total active service and he was furnished a BCD.

9.  There is no evidence of record that shows that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence duly executed.

11.  Title 10, United Stated Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that 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 modify the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show 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.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 20 years of age at the time of his first offense.

3.  The applicant had NJP imposed against him and he was convicted by a special court-martial as a result of his acts of misconduct.  Considering the nature of his offences, it does not appear that his BCD is too harsh.  He was furnished a discharge commensurate with his overall record of service.
4.   Records show the applicant should have discovered the error or injustice now under consideration on 16 April 1984; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 15 April 1987.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

rks_____  sac_____  clg_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.  

		___Samuel A. Crumpler___
		        CHAIRPERSON

INDEX

CASE ID	AR2003090641	
SUFFIX		
RECON		
DATE BOARDED	20040203	
TYPE OF DISCHARGE	BCD	
DATE OF DISCHARGE	19840416	
DISCHARGE AUTHORITY	AR 635-200, CH 3	
DISCHARGE REASON	546/SPCM	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  675	144.6800.0000/BCD	
2.  678	144.6803.0000/SERIOUSNESS OF OFFENSE	
3.		
4.		
5.		
6.