RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 July 2005
      DOCKET NUMBER:  AR20040009977


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Ms. Brenda Koch                   |     |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 clemency in the form of an
honorable discharge be granted.  He also requests that his narrative reason
for separation and Separation Program Designator (SPD) be changed to
"Convenience of the Government" and that his reenlistment (RE) code be
changed to RE-1.

2.  The applicant states, in effect, that he had a good record in the
military until the fight incident (he claims it was self defense), that he
was young and did not understand the charges against him, and that he was
not properly advised of his rights or the severity of the charge (because
he had a second lieutenant for a lawyer).  He states that if he had chosen
a judge instead of jury he would have had a better chance and that if he
had chosen to go to a holding station instead of going home to nothing, it
could have made a difference in his discharge.  He also states that his
captain had no sympathy because of personal reasons and that when he joined
the Army he was told he would spend half of his time in Germany and the
other half in the United States (he spent 2 1/2 years in Germany of his 3-
year enlistment).

3.  The applicant states that his discharge should be upgraded to honorable
for the following reasons:  (1) his ability to serve was impaired by his
youth and immaturity; (2) that if he had been in the United States he could
have had better legal representation: (3) his record of nonjudicial
punishments were only minor offenses; (4) he was treated unfairly when he
was transferred next door to the stockade because his record of promotions
show he was generally a good service member and his average conduct and
efficiency ratings and proficiency marks were good or pretty good; (5) his
commander abused his authority when he decided to discharge him and give
him a bad discharge; (6) the punishment he received was too harsh; (7) he
was so close to finishing his tour that it was unfair to give him a bad
discharge; and (8) his discharge was not fair or proper.

4.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on
9 April 1976.  The application submitted in this case is dated 10 November
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 was born on 25 July 1952.  He enlisted on 8 September
1972 for a period of 3 years.  He successfully completed basic combat
training and advanced individual training in military occupational
specialty 76P (stock control and accounting specialist).

4.  On 11 February 1974, nonjudicial punishment was imposed against the
applicant for being absent without leave from his appointed place of duty
and behaving with disrespect toward his superior commissioned officer.  His
punishment consisted of a reduction to E-2 (suspended), a forfeiture of
pay, restriction, and extra duty.

5.  On 22 August 1974, nonjudicial punishment was imposed against the
applicant for two specifications of failure to repair.  His punishment
consisted of a reduction to E-3 (suspended) and a forfeiture of pay
(suspended).

6.  On 3 April 1975, nonjudicial punishment was imposed against the
applicant for two specifications of leaving his appointed place of duty
without authority.  His punishment consisted of a reduction to E-3
(suspended), a forfeiture of pay, and extra duty.

7.  On 30 June 1975, contrary to his pleas, the applicant was convicted by
a special court-martial of committing assault upon another Soldier (by
cutting him on his left forearm, left abdomen, thumb, and index finger with
a dangerous weapon (a knife)) and violating a lawful general regulation
(possessing two ration cards in his name).  He was sentenced to be
discharged from the service with a bad conduct discharge, to be confined at
hard labor for 6 months, to be reduced to E-1, and to forfeit $229 per
month for 6 months.  On 22 August 1975, the convening authority disapproved
the findings of guilty of the second charge (violation of a lawful general
regulation) and approved the sentence.

8.  On 21 November 1975, the applicant was restored to duty pending
completion of his appellate review.

9.  The decision of the U.S. Army Court of Military Review is not
available.
On 17 March 1976, the U.S. Court of Military Appeals denied the applicant's
petition for grant of review.  On 23 March 1976, the bad conduct discharge
was ordered to be executed.

10.  Accordingly, the applicant was discharged on 9 April 1976 under the
provisions of Army Regulation 635-200, chapter 11, as a result of a court-
martial. He was issued a Bad Conduct Discharge Certificate.  He had served
3 years, 2 months, and 8 days of total active service with 144 days lost
due to confinement.

11.  Item 9c (Authority and Reason) on the applicant's DD Form 214 shows
the entry, "Para [paragraph] 11-2, AR [Army Regulation] 635-200, SPD JJD."
Item 10 (Reenlistment Code) on his DD Form 214 shows the entry, "RE-4."

12.  On 18 August 1977, the Army Discharge Review Board (ADRB) denied the
applicant's request for a discharge upgrade to general.  On 9 July 1980,
the ADRB denied the applicant's request to change his narrative reason for
separation.

13.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 11 of this regulation, in effect at the
time, states that a Soldier will be given a bad conduct discharge pursuant
only to an approved sentence of a general or special court-martial.  The
appellate review must be completed and the affirmed sentence ordered duly
executed.

14.  Section 1552(f), Title 10, United States Code states that the ABCMR
can only review records of court-martial and related administrative records
to correct a record to accurately reflect action taken by reviewing
authorities under the Uniform Code of Military Justice or to take clemency
action.

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.

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.  Army Regulation 635-5-1 (Separation Program Designators), in effect at
the time, prescribed the specific authorities (regulatory, statutory, or
other directives), the reasons for the separation of members from active
military service, and the SPDs to be used for these stated reasons.  The
regulation stated the reason for discharge based on SPD “JJD” was “As a
result of court-martial, other” and the regulatory authority was Army
Regulation 635-200, chapter 11.

18.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned RE codes, based on their
service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment
processing into the Regular Army and the USAR.  Chapter 3 of that
regulation prescribes basic eligibility for prior service applicants for
enlistment.  That chapter includes a list of armed forces RE codes.

19.  RE-4 at the time applied to persons separated from last period of
service with a nonwaivable disqualification.

20.  RE-1 at the time applied to persons who were fully qualified when last
separated.

21.  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 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
that 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.  There is no evidence of record to support the applicant's contention
that his ability to serve was impaired by his youth and immaturity.  The
applicant was 20 years old when he enlisted and he successfully completed
basic combat training and advanced individual training.

2.  The applicant's contentions pertaining to his claim of self defense and
inadequate legal representation relate to evidentiary and procedural
matters which were finally and conclusively adjudicated in the court-
martial appellate process and furnishes no basis for recharacterization of
the discharge.

3.  The applicant’s record of service included three nonjudicial
punishments, one special court-martial conviction for aggravated assault,
and 144 days of lost time. As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, clemency in the form of
an honorable discharge is not warranted in this case nor was his service
sufficiently satisfactory to warrant a general discharge.

4.  The narrative reason for separation and the SPD used in the applicant’s
case are correct and were applied in accordance with the applicable
regulations.

5.  The RE-4 entry shown in item 10 on the applicant's DD Form 214 is
correct and was applied in accordance with the applicable regulations.

6.  Records show the applicant should have discovered the alleged errors
now under consideration on 9 July 1980; therefore, the time for the
applicant to file a request for correction of any error expired on 8 July
1983.  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

JI______  RO______  BK_____  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.




            __John Infante_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009977                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050721                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19760409                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 11                   |
|DISCHARGE REASON        |As a result of court-martial            |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |110.0200                                |
|3.                      |100.0300                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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