RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2005
      DOCKET NUMBER:  AR20040000969


      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. Mark D. Manning               |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |Member               |

      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 DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) be corrected by expunging mention
of 83 days of lost time from Item 30 (Remarks).

2.  The applicant states that he was never absent without leave; he was in
confinement.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 March 1972.  The application submitted in this case is
dated 27 April 2004.

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 limitations 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.  The applicant enlisted in the Regular Army for 3 years on 29 December
1967. He reenlisted for 3 years on 8 January 1969 and was honorably
separated on 30 March 1972.  His DD Form 214 shows 83 days of lost time
under 10 USC 972.

4.  The applicant had a history of assaultive behavior against
noncommissioned officers (NCOs).  On 6 December 1969, he threatened to beat
a sergeant on the head with a metal rod.  On 14 August 1970, he threatened
an NCO by saying he'd better sleep lightly.  These incidents were disposed
of through nonjudicial punishment (NJP) under Article 15, Uniform Code of
Military Justice.

5.  On 18 November 1970, the applicant assaulted a sergeant by punching him
in the face, kicking him in the chest and side, and kicking him in the back
of the head.  Court-martial charges were preferred against him and, on 19
February 1971, he pleaded guilty and was found guilty of assault.

6.  The applicant's DA From 20 (Enlisted Qualification Record) shows in
Item 44 (Time Lost Under Section 972, Title 10) that he was AWOL (absent
without leave) from 21 November 1970 through 11 February 1971, a total of
83 days.

7.  Title 10 U.S. Code §972 states an enlisted member of an armed force who
deserts, is absent from his organization, station, or duty for more than
one day without proper authority, or is confined by military or civilian
authorities incurs lost time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 states that he has 83 days of lost time.
It does not specify whether the applicant was AWOL, or in confinement.

2.  The applicant's records show that he had 83 days of lost time
attributable to being AWOL.  However, given the fact that he assaulted an
NCO on 18 November 1970 and his lost time commenced on 21 November 1970, it
seems likely he was placed in pre-trial confinement as he alleges.
However, whether he was AWOL or in confinement for the 83 days, the entry
on his DD Form 214 is correct.  There is no need to change it.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 March 1972; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 March 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __bje___  __pms___  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.



                                        Mark D. Manning
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000969                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050308                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |123.0700                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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