RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:  AR20040008072


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 discharge be upgraded from
under other than honorable to an honorable discharge.

2.  The applicant states, in effect, that he was young, under stress due to
family problems and not thinking about the outcome of his action when he
went AWOL [absent without leave].  He adds that this discharge has affected
his life.

3.  The applicant further states that he believes he did not deserve the
discharge he was given.  He points out that he has seen other Soldiers who
have hit or shot someone and/or committed other offenses who were given
either good or honorable discharges.

4.  The applicant provides in support of his application a copy of his DD
Form 214 (Report of Separation from Active Duty) with a separation date of
18 June 1975.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 June 1975, the date of his separation.  The application
submitted in this case is dated 13 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 limitation 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 8 April 1969 for a period
of three years.  He completed basic combat training and advanced individual
training and was awarded (MOS) military occupational specialty 57E20
(Laundry, Bath and Impregnation Specialist) and was assigned to A Company,
502nd Supply & Transportation Battalion, 2nd Armored Division, Fort Hood,
Texas, for duty.



4.  On 18 December 1969, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) for the period from
13 December 1969 to 17 December 1969.  His punishment consisted of
reduction to the rank of private first class/pay grade E-3, extra duty and
restriction for 14 days.

5.  On 14 January 1970, nonjudicial punishment was imposed against the
applicant for being AWOL for the period from 3 January 1970 to 10 January
1970.  His punishment consisted of forfeiture of $36.00 pay per month for
one month and extra duty and restriction for 14 days.

6.  The applicant's record contains DD Form 268 (Report for Suspension of
Favorable Personnel Actions), dated 13 December 1973.  This DD Form
268 shows that the applicant was dropped from the rolls on 22 March 1970
and apprehended and returned to military control on 13 December 1973 at
Fort Hood, Texas.

7.  Headquarters, 2nd Armored Division, Fort Hood, Texas, Special Court-
Martial Order Number 10, dated 30 January 1974, shows that the applicant
was convicted of one specification of being AWOL for the period from 22
March 1970 to 13 December 1973.  He was sentenced to confinement at hard
labor for 21 days, forfeiture of $150.00 pay per month for one month,
reduction to private/pay grade E-1, and a bad conduct discharge (BCD).  On
30 January 1974, the convening authority approved the sentence.

8.  Headquarters, 2nd Armored Division, issued Special Orders Number 431,
dated 7 February 1974 authorized the applicant to be placed on involuntary
excess leave in an administrative absence status, pending completion of the
appellate review.

9.  On 29 March 1974, United States Army Court of Military Review affirmed
the findings of guilty and the sentence.

10.  Special Court-Martial Order Number 54, 16 May 1974, Headquarters, 2nd
Armored Division, announced the applicant's sentence had been affirmed and
the provisions of Article 71c had been complied with.  The Order further
stated that the applicant had served the sentence to confinement and
directed that the bad conduct discharge be executed.




11.  The applicant was discharged from the Regular Army, effective 18 June
1975, under the provisions of Special Court-Martial Order 54, dated 16 May
1974 and furnished a Bad Conduct Discharge Certificate.  He completed
2 years, 4 months, and 29 days of active military service with 1381 days of
lost time due to AWOL, confinement and excess leave.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for
upgrade of his discharge.  On 30 October 1980, the ADRB considered his case
and found that he had been properly and equitably discharged.  As a result,
the ADRB voted unanimously to deny his request.

13.  Army Regulation 635-200 (Enlisted Separations) governs the separation
of enlisted Soldiers on active duty.  Paragraph 3-11 states that a member
will be given a bad conduct discharge pursuant only to an approved sentence
of a general or special court-martial, after completion of appellate review
and after such affirmed sentence has been ordered duly executed.

14.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, section 1552, the authority under which this Board acts, the Army
Board for Correction of Military Records is not empowered to set aside a
conviction.  Rather it is only empowered to change the severity of the
sentence imposed in the court-martial process and then only if clemency is
determined to be appropriate.  Clemency is an act of mercy, or instance of
leniency, to moderate the severity of the punishment imposed.

15.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

16.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

17.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined the 3 year limit on filing to the Army
Board for Correction of Military Records (ABCMR) should commence on the
date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his bad conduct discharge should be upgraded
because he was young, under stress due to family problems and not thinking
about the outcome of his actions when he went AWOL.

2.  Trial by court-martial was warranted by the gravity of the offense
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

3.  Records indicate that the applicant was almost 22 years old at the time
he was convicted for the offense and he was 23 years old at the time of his
discharge.  Records also show that the applicant was promoted to
specialist/pay grade E-4.  However, there is no evidence that indicates
that the applicant was any less mature than other Soldiers of the same age
who successfully completed military service.

4.  The applicant has not provided any evidence which shows that his chain
of command was aware of his problems or that he sought any form of
assistance in dealing with his personal problems at the time.  The
applicant's separation under the provisions of Army Regulation 635-200,
chapter 11, by reason of court-martial, with a punitive discharge was
administratively correct and in conformance with applicable regulations.

5.  The applicant contends that he does not deserve the discharge he was
given. He adds that other Soldiers who have hit or shot someone and/or
committed other offenses were given either good or honorable discharges.

6.  The applicant has not provided any evidence to show his type of
discharge is incorrect nor did he provide any additional evidence to show
other Soldiers were given either a good or honorable discharge for the same
offenses.

7.  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.

8.  The applicant’s record of service includes two nonjudicial punishment,
one special court-martial and 1381 days of being AWOL and confinement.  As
a result, his Army service does not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Furthermore, this
service is not satisfactory in view of the length of his AWOL.  Therefore,
his service is not sufficiently meritorious to warrant a grant of clemency
in the form of an honorable or a general discharge.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 October 1980, the date of the ADRB
review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 29 October 1983.  In the
absence of such evidence, it is not in the interest of justice to excuse
the applicant's failure to timely file within the 3-year statute of
limitations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_DJ____  _JS_____  _MJF____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined 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.




            _John N. Slone__
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004000872                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1975/06/18                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |SPCM0 CH11                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |DIRECTOR                                |
|ISSUES         1.       |A105.0000                               |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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