RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 February 2004
      DOCKET NUMBER:   AR2003084875


      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. Robert J. McGowan             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Linda M. Barker               |     |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, in effect, that his discharge be upgraded to
honorable or general, under honorable conditions.

2.  The applicant states that he is a "victim of circumstances."  He adds
that he let someone use his car.

3.  The applicant states that he would like his veterans benefits.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 14 December 1979.  The application submitted in this case is
undated, but was received on 14 January 2003.

2.  The applicant enlisted in the Regular Army (RA) for 3 years on 11
October 1973.  Upon completion of training, he was awarded military
occupational specialty (MOS) 72E (Telephone Communications Specialist).  He
achieved his highest rank of Specialist Four (SP4/E-4) on 9 January 1975.

3.  In April 1976, the applicant was assigned to Headquarters and
Headquarters Company, 197th Infantry Brigade, Fort Benning, Georgia.  On 29
April 1976, the applicant was at an on-post club with a friend and fellow
Soldier.  In the parking lot, an altercation developed between the
applicant and his friend and at least two other Soldiers.  The applicant's
friend produced a handgun and shot two Soldiers.  The applicant and his
friend then jumped in the applicant's car, fled the scene of the shooting,
and returned to their unit barracks.

4.  On 30 April 1976, court-martial charges were preferred against the
applicant for a violation of Article 78, Uniform Code of Military Justice,
accessory after the fact, in that he did, knowing that his friend had
committed the offense of assault with intent to murder, assist that friend
to avoid apprehension by transporting him from the scene of the crime by
automobile.

5.  The applicant was tried by a General Court-Martial at Fort Benning on
23 July 1976.  Contrary to his plea of not guilty, he was convicted of
being an accessory after the fact to aggravated assault with a dangerous
weapon likely to produce grievous bodily harm or death and sentenced to a
Bad Conduct Discharge, forfeiture of $150 pay per month for 6 months, and
confinement at hard labor for 3 months.

6.  The applicant served his sentence to confinement at Fort Benning from
29 April 1976 to 6 October 1976.  He was placed on excess leave on 6 May
1977 pending completion of his appellate review.

7.  On 23 May 1977, the US Army Court of Military Review affirmed the
applicant's findings of guilty and the sentence.  On 10 September 1979, the
US Court of Military Appeals affirmed the lower court's ruling.

8.  The applicant was separated with a Bad Conduct Discharge on 14 December
1979.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade.  The ADRB notified the applicant on 16 July 1981 that
it could not review his discharge because it was effected by a General
Court-Martial conviction.

10.  Army Regulation (AR) 635-200, then in effect, set forth the basic
authority for the separation of enlisted personnel.  Chapter 11 provided
that a Soldier would be given a Bad Conduct Discharge pursuant only to an
approved sentence to a General Court-Martial or Special Court-Martial.  The
appellate review must have been completed and the affirmed sentence ordered
duly executed.

11.  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 ABCMR is
not empowered to change a discharge due to matters which should have been
raised in the appellate process.  The Board 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.  On 23 July 1976, a General Court-Martial convicted the applicant of
being an accessory after the fact to aggravated assault with a dangerous
weapon likely to produce grievous bodily harm or death.  The adjudged
sentence, which comprised a Bad Conduct Discharge, was affirmed upon
review.  On 14 December 1979, the Bad Conduct Discharge was executed.

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.


BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __rtd___  __lmb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                 John N. Slone
            ______________________
                    CHAIRPERSON
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.



                 John N. Slone
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003084875                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040210                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19791214                                |
|DISCHARGE AUTHORITY     |AR 635-200 C11                          |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0000                                |
|2.                      |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |