APPLICANT REQUESTS:  That his bad conduct discharge (BCD) be upgraded to an honorable discharge.

APPLICANT STATES:  In effect, that he received a BCD because of a fight that was racially motivated; that he was attacked by three white enlisted men for racial reasons; that he defend himself in form and manner as taught by the Army; that although it has been over 25 years, he respectfully request that the Board review his discharge and grant his   request for an honorable discharge.

EVIDENCE OF RECORD:  The applicant's military records show:

He was born on 2 November 1950.  He completed 9 years of formal education.  On 14 March 1968, the applicant enlisted in the Regular Army for 3 years.  His military occupational specialty was 11B10 (Light Weapons Infantryman).  The highest grade he achieved was pay grade E-2.

On 20 November 1968, the applicant was convicted by a special court-martial of two specifications of lifting a knife against his superior officer and for having alcoholic beverages in the barracks.  He was sentenced to a forfeiture of $100 pay and a reduction to pay grade E-1.

On 13 June 1969, the applicant was convicted by a general court-martial (GCM) of committing an assault upon a fellow soldier and for wrongfully communticating a threat against the same soldier.  He was sentenced to confinement at hard labor for 1 year, a forfeiture of all pay and allowances and to be dishonorably discharged from the Army.  On 18 July 1969, the applicant was restored to duty pending completion of the appellated review.  That portion of the sentence adjudging for forfeitures was terminated



stop. 


Between 18 July and 3 November 1972, the applicant accepted four NJP’s, under Article 15, UCMJ, for two specifications of leaving his appointed place of duty without proper authority, for being AWOL from 31 October to 3 November 1972, for disobeying a lawful order and for dereliction of duty.  His punishment included forfeitures, restrictions and extra duties.  

The applicant’s military records indicates that court-martial charges were preferred against the applicant for the possession of heroin.  However, the particulars are missing from his file. 

On 12 January 1973, the applicant was convicted by a special court-martial of two specifications of assault, for wrongfully communicating a threat and for being AWOL from 
11 to 15 December 1972.  He was sentenced to a forfeiture of $100 pay per month for 4 months, confinement at hard labor for 4 months and to be discharged from the service with a BCD.  On 26 January 1973, the convening authority approved the sentenced and forwarded the record of trial to the Judge Advocate General of the Army for review by a board of review.

On 20 February 1973, 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.  

On 17 April 1973, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial, under other than honorable conditions with a BCD certificate.  He had completed 1 year, 8 months and 4 days of active service during this enlistment.  He was awarded the Bronze Star Medal, the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal and the Vietnam Campaign Medal.  

Title 10, United States Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  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 the aforementioned requirement.

2.  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.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his allegation or request.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.    

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director

APPLICANT REQUESTS:  

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the ***.  It contains no information, advice or recommendation which would constitute a basis for granting the relief requested or for excusing the applicant's failure to timely file.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on     , the date      .  The time for the applicant to file a request for correction of any error or injustice expired on      .

The application is dated         and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director