RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040002536


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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, in effect, that his bad conduct discharge (BCD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that at the time he was arrested, he
had less than 1 week left until his expiration of term of service (ETS) and
separation from the Army.  He claims the charges against him were flawed
and that he was
set-up by fellow Soldiers.  He concludes that due to the circumstances of
the war, he deserves an upgrade of his discharge.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 June 1972.  The application submitted in this case is
dated
12 May 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’s record shows that he enlisted in the Regular Army and
entered active duty on 26 November 1969.  He was trained in, awarded and
served in military occupational specialty (MOS) 31M (Radio Relay Operator).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he was
promoted to the rank of private first class (PFC) on 27 June 1970, and that
this is the highest rank he attained while serving on active duty.  His
record further shows he served in the Republic of Vietnam (RVN) from 22
June 1970 through 21 June 1971, and that he earned the following awards
during his active duty tenure:  National Defense Service Medal, Vietnam
Campaign Medal, Vietnam Service Medal and Expert Qualification Badge with
Rifle Bar.  No acts of valor or significant achievement are documented in
his record.

5.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice UCMJ) on two separate occasions.

6.  On 15 December 1970, the applicant accepted NJP for failing to go to
his appointed place of duty at the prescribed time.  His punishment for
this offense was a suspended reduction to private/E-2 (PV2) and 10 days of
extra duty.

7.  On 25 March 1971, the applicant accepted NJP for failing to go to his
appointed place of duty at the prescribed time.  His punishment for this
offense was a forfeiture of $25.00.

8.  On 24 August 1971, a general court-martial (GCM) found the applicant
guilty pursuant to his pleas of two specifications of violating Article 134
of the UCMJ.  Specification 1 was the wrongful possession of 2.52 grams,
more or less, of a habit forming narcotic drug, to wit, heroin.
Specification 2 was the wrongful transfer of a habit forming narcotic drug,
to wit, heroin.  The resultant sentence included a dishonorable discharge,
forfeiture of all pay and allowances, confinement at hard labor for two
years and reduction to private/E-1 (PV1).

9.  On 6 October 1971, in GCM Order Number 30, issued at Headquarters,
23rd Infantry Division (Americal), APO San Francisco 96374, the GCM
convening authority approved the sentence and directed that the applicant
be confined in the United States Disciplinary Barracks (USDB), Fort
Leavenworth, Kansas pending the appellate review.

10.  On 13 June 1972, GCM Order Number 678, issued by Headquarters, USDB,
Fort Leavenworth, Kansas, pursuant to Article 66 of the UCMJ the finding of
guilty of specification two of the charge was dismissed, and only so much
of the sentence that provided for a BCD, forfeiture of all pay and
allowances, confinement at hard labor for one year and reduction to PV1 was
affirmed.  It also directed, Article 71c of the UCMJ having been complied
with, that the modified sentence be duly executed.

11.  On 26 May 1972, subsequent to a review of the applicant’s case on
behalf of the Secretary of the Army, the Provost Marshall General of the
Army denied the applicant’s restoration to duty, parole and clemency.

12.  On 13 June 1972, the applicant was separated with a BCD.  The
separation document (DD Form 214) he was issued shows he was separated
under the provisions of Chapter 11, Army Regulation 635-200, as a result of
court-martial.  It also shows that at the time of his separation, he had
completed a total of
1 year, 8 months and 28 days of creditable active military service and had
accrued 294 days of time lost due to confinement.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11, in effect at the time,
provided the policies and procedures for separating members with a
dishonorable or bad conduct discharge.  It stipulated that a Soldier would
be given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial and that the appellate review must be
completed and the affirmed sentence ordered duly executed.

14.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was less than 1 week from ETS and
that he was set-up by fellow Soldiers were carefully considered.  However,
the evidence of record shows his trial by court-martial was warranted by
the gravity of the offense(s) for which he was charged.  Conviction and
discharge were effected in accordance with applicable law and regulations,
and the discharge appropriately characterizes the misconduct for which he
was convicted.  Further, the record shows that clemency was previously
considered and denied on behalf of the Secretary of the Army in the
applicant’s case.

2.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed. In light of the seriousness of the
offenses for which he was convicted, and absent the presentation of any
significant mitigating factors, the applicant’s overall record of service
does not support clemency in this case.
3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 June 1972.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
12 June 1975.  However, he 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

___RJW_  ___JTM _  ___JKR__  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.




            ____Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002536                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/15                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1972/06/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |GCM                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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