RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 June 2005
      DOCKET NUMBER:  AR20010007844


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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, an upgrade of his bad conduct
discharge (BCD).

2.  The applicant states, in effect, that there was no proof to support his
conviction, and the witness against him was not credible.

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 3 April 1981.  The application submitted in this case is
dated
3 September 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 27 June 1977.  He was trained in, awarded and served
in military occupational specialty (MOS) 71L (Administration Specialist),
and the highest rank he attained while serving on active duty was private
first class (PFC).


4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal a
disciplinary history that 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, and his conviction by a special
court-martial (SPCM).
5.  On 30 March 1978, the applicant accepted NJP for being absent without
leave (AWOL) from 15 February through 9 March 1978.  His punishment for
this offense included a forfeiture of $90.00 ($40.00 suspended for 60
days), reduction to private/E-1 (PV1) (suspended for 60 days) and 14 days
of extra duty.

6.  On 5 March 1979, the applicant accepted NJP for disobeying a lawful
order, being disrespectful in language toward a superior noncommissioned
officer (NCO) and communicating a threat.  His punishment for these
offenses included a forfeiture of $100.00, reduction to private/E-2 (PV2)
(suspended for 60 days) and 14 days of extra duty.  On 19 March 1979, the
suspended portion of the punishment was vacated for cause, and the
applicant was reduced to PV2 accordingly.

7.  On 27 November 1979, a SPCM convicted the applicant of two
specifications of violating Article 121 by committing larceny; and of
violating Article 130 of the UCMJ by housebreaking.  The resultant sentence
included confinement at hard labor for six months, forfeiture of $298.00
per month for six months and a BCD.

8.  On 19 May 1980, the United States Court of Military Review, after a
review of the entire record in the applicant’s case found the findings of
guilty and the sentence correct in law and fact.  As a result, it affirmed
the findings of guilty and the sentence in his case.

9.  On 15 August 1980, SPCM Order Number 220, issued by Headquarters,
United States Disciplinary Barracks, Fort Leavenworth, Kansas, directed,
Article 71c of the UCMJ having been complied with, that the unexecuted
portion of the applicant’s approved sentence be duly executed.  On 3 April
1981, the applicant was discharged accordingly.  The separation document
(DD Form 214 issued to the applicant on the date of his separation 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 3 years, 3 months and
19 days of creditable active military service and had accrued 185 days of
time lost due to AWOL and confinement.

10.  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.
11.  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.

12.  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 his trial was unfair was carefully
considered.  However, there is insufficient evidence to support this claim.
 The evidence of record confirms the applicant’s BCD was only executed
after his case had completed the appellate process and his conviction was
found to be correct in law and fact of the United States Army Court of
Military Review.  There is no evidence that would call this determination
by the court into question.

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 his rights were protected throughout the court-martial
process.

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.

4.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that based on his disciplinary history and
the seriousness of the offenses for which he was convicted, clemency would
not be appropriate in this case.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 April 1981.  Therefore, the time for
him to file a request for correction of any error or injustice expired on 2
April 1984.  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

___MKP_  ___PHM _  __LMD__  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.




            ___Margaret K. Patterson __
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007844                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/21                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1981/04/03                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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