RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            06 APRIL 2004
      DOCKET NUMBER:   AR2003096273


      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. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Lana E. McGlynn               |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 be upgraded.

2.  The applicant states his attorney told him that if he were "good" the
Army would upgrade his discharge.  He states the discharge was not upgraded
as he was told.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on
4 October 1966.  The application submitted in this case is dated 8 August
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.  Records available to the Board indicate that the applicant was inducted
and entered active duty on 15 March 1965.  On 19 April 1965, while
undergoing training, he departed AWOL (absent without leave).  According to
a FBI (Federal Bureau of Investigation) report, the applicant was charged
with writing fraudulent checks in May 1965 in Kansas City, Missouri.  He
returned to military control in October 1965.

4.  Between 6 November and 9 November 1965 the applicant wrote eight
worthless checks to various individuals.  A ninth worthless check, in the
amount of $548.85, was written to a car salesman as down payment on an
automobile.

5.  On 31 March 1966 the applicant was convicted, pursuant to his pleas of
guilty, by a general court-martial at Fort Riley, Kansas of the AWOL and
nine counts of writing worthless checks.  The court-martial action noted
that the applicant had written the checks on an account from a bank that he
never had an account with. His sentence included confinement at hard labor
for 9 months, total forfeiture, and a bad conduct discharge.

6.  The sentence was adjudged on 31 March 1966.  On 24 June 1966 the United
States Army Judiciary Board of Review affirmed the sentence.  On 20
September 1966 the court-martial action, having been affirmed, the bad
conduct discharge was ordered to be executed.
7.  On 4 October 1966 the applicant's bad conduct discharge was executed.
At the time of his discharge he had 1 month and 23 days of creditable
service and more than 500 days of lost time due to AWOL and confinement.

8.  An FBI report notes that in 1967 the applicant was charged with first
degree robbery and sentenced to 5 years.

9.  Army Regulation 635-200 also states that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

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 that requirement.  Information available to the Board indicates
that he continued to have problems even after his discharge.

2.  The applicant has provided no evidence, which is sufficiently
compelling to warrant clemency as a matter of equity in this case.

3.  The character of the applicant’s separation was appropriate considering
his junior grade and length of service at the time he committed the
offenses, which resulted in the court-martial action.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 October 1966; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
3 October 1969.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SK ___  __LEM __  __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                 |AR2003096273                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040406                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |