RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 APRIL 2004
      DOCKET NUMBER:   AR2004100617


      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. Roger W. Able                 |     |Chairperson          |
|     |Mr. Robert J. Osborn II           |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, in effect, that he had "hidden mental problems."

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
24 July 1972.  The application submitted in this case was received in
November 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 enlisted and
entered active duty on 21 April 1971.  He successfully completed basic
combat and advanced individual training.  He received excellent conduct and
efficiency ratings during each training program.  In October 1971 he was
assigned to Fort Carson, Colorado as a cook's helper and promoted to pay
grade E-3.

4.  On 6 January 1972 the applicant was placed in confinement after selling
drugs to another Soldier during a CID (Criminal Investigation Division)
"supervised buy."

5.  The applicant was ultimately convicted by a general court-martial
pursuant to his pleas of possession of marihuana and heroin, and sale of
heroin.  His sentence included confinement at hard labor for 1 year, total
forfeiture of pay and allowances, reduction to pay grade E-1, and a bad
conduct discharge.  The sentence was adjudged on 17 February 1972 and
approved on 14 March 1972.

6.  During the court-martial session, the applicant's commander testified
that he felt "the accused had a psychological problem and was emotionally
disturbed."  A 16 January 1968 psychiatric examination, completed when the
applicant was 17




years old and introduced as evidence during the applicant's trial, noted
that the examining doctor "listed his impression as adjustment reaction of
adolescence, severe, with neurotic features and marked antisocial,
oppositional and narcissistic trends."  A physician from the Fort Carson
Mental Hygiene Clinic stated during his testimony that in spite of the
applicant's emotional conditions, he could "distinguish right from wrong
and to adhere to the right, and could understand the proceedings of a court-
martial…."

7.  At the time the military judge announced the applicant's sentence, he
recommended that the applicant be returned to duty in the Army under a
suspended bad conduct discharge if he responded to rehabilitation while at
the United States Disciplinary Barracks.  He further recommended that if
the applicant did not respond to rehabilitative measure that the discharge
should be executed when finally approved.

8.  A 9 March 1972 document, from the Staff Judge Advocate indicated that a

psychiatric report found the applicant "mentally responsible."

9.  The applicant arrived at the United States Disciplinary Barracks on 17
March 1972.  Documents associated with the applicant's confinement indicate
that he appeared before a Discipline and Adjustment Board on 10 April 1972
for fighting and that in June 1972 he started a fire in his cell, which
destroyed his bedding.

10.  A psychiatric evaluation, conducted as part of a consideration for
clemency and/or restoration to duty, indicated that the applicant showed an
"emotionally unstable personality, chronic and moderate, with immature,
antisocial, and passive-aggressive features, manifested by ineffectual
responses to social and intellectual demands, fluctuating emotional
attitudes, difficulty establishing close interpersonal ties, and
unsocialized behavior patterns beginning at an early age, flatness of
affect, circumstantiality, and difficulty with impulse control."  Although
restoration was not recommended, clemency was.  Ultimately, however,
clemency was not approved and restoration to duty was disapproved.

11.  On 31 March 1972 the United States Army Court of Military Review
affirmed his findings of guilty and sentence.  On 24 July 1972 the
applicant's bad conduct discharge was executed.

12.  A FBI (Federal Bureau of Investigation) report, contained in the
applicant's file, indicates that following his discharge from the Army he
was charged with speeding and possession of hashish and marijuana in July
1973, aggravated assault in August 1973, interfering with the lawful duties
of a police officer in February 1975, robbery in March 1975, and burglary
and grand larceny in January 1978.  His application to the Board was sent
from the Dade Correctional Institution in Florida City, Florida.

DISCUSSION AND CONCLUSIONS:

1.  Evidence available to the Board indicates that the applicant
successfully completed training, was promoted to pay grade E-3, and at one
time had received excellent conduct and efficiency ratings.  Such
accomplishments are evidence that, in spite of the applicant's "hidden
mental problems" he was capable of honorable service.  Evaluating medical
officials also concluded that the applicant was capable of distinguishing
right from wrong and adhering to the right.

2.  The applicant's discharge was accomplished in compliance with
applicable regulations with no indication of procedural errors, which would
tend to jeopardize his rights.

3.  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.

4.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 July 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
23 July 1975.  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

__RWA__  __RJO__  __YM ___  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.




            _____Roger W. Able_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100617                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040413                                |
|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.                      |                                        |