RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 March 2005
      DOCKET NUMBER:  AR20040002922


      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. Thomas D. Howard              |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he was persuaded by a court
ordered attorney to make a bad choice.  He states that he only took the
plea bargain for the BCD because he faced 47 years confinement at Fort
Leavenworth, Kansas.  He states that for twenty years after Vietnam, he was
told by the Department of Veterans Affairs (VA) that he needed a
Presidential Pardon, which was false information.

3.  The applicant provides a self-authored statement, a statement in
support of claim (VA Form 21-4138), scholarship letter and photograph in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 May 1973.  The application submitted in this case is
dated 10 June 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 11 February 1971.  He was trained in, awarded and
served in military occupational specialty (MOS) 67A (Aircraft Maintenance
Specialist).
4.  The record further shows that the applicant served as a door gunner in
the Republic of Vietnam (RVN) from 13 September 1971 through 12 June 1972,
at which time he was placed in pre-trial confinement.  The record also
shows that during his active duty tenure, he earned the National Defense
Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Air Medal and
Aircraft Crewman’s Badge.

5.  The record also reveals that prior to the special court-martial (SPCM)
that resulted in his BCD, the applicant had accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on two separate occasions.  The first on 4 December 1971,
for failure to go to his appointed place of duty and the second on 16 March
1972, for leaving his appointed place of duty and possession of a false
pass.

6.  On 19 August 1972, the applicant entered into a plea agreement.  In
this agreement, he agreed to plea guilty conditioned on the convening
authority’s agreement that he would not approve an adjudged sentence in
excess of a BCD, confinement at hard labor for six months, forfeiture of
two-thirds pay per month for six months, and reduction to the lowest
enlisted grade, and to suspend all confinement in excess of 45 days.

7.  On 21 August 1972, the applicant plead guilty and was found guilty by a
SPCM of seven specifications of violating Article 134 of the UCMJ, by
wrongfully possessing, selling, transferring, and using a habit forming
drug (heroin).  The resultant sentence included forfeiture of $75.00 per
month for two months, confinement at hard labor for two months and a BCD.

8.  On 16 September 1972, in Headquarters, The Support Troops, United
States Army Vietnam (USARV) SPCM Orders Number 65, the SPCM convening
authority approved the sentence, but that portion that adjudged confinement
at hard labor which was in excess of 45 days was suspended for six months.

9.  On 10 January 1973, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence pertaining to the
applicant after having determined that they were correct in law and fact.

10.  On 12 March 1973, the United States Court of Military Appeals denied
the applicant’s petition for a grant of review.

11.  On 29 March 197, SPCM Order 34, issued by Headquarters, 9th Infantry
Division and Fort Lewis, directed, Article 71c of the UCMJ having been
complied with, that the unexecuted portion of the applicant’s approved
sentence be duly executed.  On 8 May 1973, the applicant was discharged
accordingly.

12.  The DD Form 214 issued to the applicant on the date of his separation,

8 May 1973, shows that he was separated with a BCD under the provisions of
chapter 11, Army Regulation 635-200, by reason of court-martial.  It also
shows that at the time of his separation, he had completed a total of 2
years, 2 months and 28 days of creditable active military service.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

14.  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.

15.  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 contention that he was persuaded by a court ordered
attorney to make a bad choice by agreeing to a plea bargain and only did it
to avoid the possibility of 47 years confinement at Fort Leavenworth,
Kansas was carefully considered.  However, this factor is not found
sufficiently mitigating to warrant granting the requested relief.

2.  The evidence of record confirms the applicant’s trial by court-martial
was warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
and regulations, and in accordance with the applicant’s own plea agreement.


3.  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.  After a thorough and comprehensive
review of the applicant’s military service record, it is concluded that,
notwithstanding his good combat service, his prior disciplinary history and
the seriousness of the offenses for which he was convicted clemency would
not be inappropriate in this case.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1973.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 7
May 1976.  However, he failed to 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

___RJO _  ___TDH _  ___JBG_  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.




            ____Thomas D. Howard___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002922                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/17                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1973/05/08                              |
|DISCHARGE AUTHORITY     |AR 635-200 C11                          |
|DISCHARGE REASON        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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