RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        02 AUGUST 2005
      DOCKET NUMBER:  AR20040006458


      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. Gale J. Thomas                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he received a bad conduct discharge but was
told that after time served his DD Form 214 (Report of Separation from
Active Duty) would be upgraded to general under honorable conditions.  He
was 19 years of age at the time of trial and feels the outcome of the court-
martial was unjustified. The applicant states that another person admitted
his guilt in a deposition, but he was still charged and convicted.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
1 March 1977.  The application submitted in this case is dated 11 August
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 on 15 May 1974, for a period
of
3 years.

4.  On 28 April 1975, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)
for operating a privately owned vehicle while drunk.  His punishment was a
forfeiture of pay and extra duty.

5.  On 7 May 1975, he accepted NJP under the provisions of Article 15, UCMJ
for being absent without leave (AWOL) from 1 May 1975 to 2 May 1975.  His
punishment was a forfeiture of pay, extra duty, and reduction (suspended).



6.  On 26 June 1975, he accepted NJP under the provisions of Article 15,
UCMJ for failing to obey a lawful general order by not shaving before
morning formation, failing to go to his appointed place of duty, failure to
obey a lawful order from a superior noncommissioned officer to report for
detail, and for showing disrespect to a superior noncommissioned officer by
saying, ”I’m not going to pull no detail for anyone,” and then turning and
leaving the scene.  His punishment was extra duty and a forfeiture of pay.

7.  On 22 July 1975, he accepted NJP under the provisions of Article 15,
UCMJ for driving a vehicle while his driver’s privileges were suspended.
His punishment was restriction, extra duty and a forfeiture of pay.

8.  On 25 May 1976, he was convicted contrary to his pleas by a special
court-martial of selling five tablets of Phencyclidine (PCP).  He was
sentenced to confinement at hard labor for 5 months, a forfeiture of pay
for 5 months, reduction to Private E-1, and to be discharged from the Army
with a bad conduct discharge.

9.  On 23 July 1976, a medical examination cleared the applicant for
separation.

10.  On 3 December 1976, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence as correct in law and
fact.

11.  Special Court-Martial Order 15, Headquarters U.S. Army Armor Center
and Fort Knox, dated 9 February 1977, directed that the court-martial
sentence be duly executed, noting that the portion of the sentence
pertaining to confinement at hard labor had been served.

12.  The applicant was discharged on 1 March 1977, under the provisions of
Army Regulation 635-200, chapter 11, with a bad conduct discharge.  His DD
Form 214 indicated he had 2 years, 5 months and 11 days of active service
and
128 days of lost time.

13.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 11, paragraph
11-2, provided that a bad conduct discharge will be issued pursuant to an
approved sentence of a general or special court-martial, after completion
of the appellate review, and the sentence had been affirmed and ordered
duly executed.




14.  There is not, nor has there been during the relevant time period, any
program based on statute, regulation, or policy that provides for an
automatic upgrade of a punitive discharge in the absence of a suspended
sentence providing for automatic remission.

DISCUSSION AND CONCLUSIONS:

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

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  There is no evidence in the available records nor did the applicant
provide documentation to substantiate his claim that someone else admitted
their guilt to the crime, but that he was charged and convicted, nor is
there evidence that he was told his discharge would be upgraded to general
after time served.

4.  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 this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1977, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
28 February 1980.  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

___WP __  ___RD __  ___JM   _  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.




                                  _____William Powers_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006458                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050802                                |
|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.                      |                                        |


-----------------------
[pic]