RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          11 August 2005
      DOCKET NUMBER:  AR20040010715


      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 Slone                    |     |Chairperson          |
|     |Ms. Deborah Jacobs                |     |Member               |
|     |Mr. Michael 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 bad conduct discharge be
changed to a medical discharge.

2.  The applicant states his accident, while on duty, was never mentioned
in his court-martial.  He believes that everything changed after his
accident on
21 August 1982 because he was in pain all the time and was not allowed to
go on sick call until 29 September 1982.  He contends he was discharged in
February or March 1983 and his DD Form 214 (Certificate of Release or
Discharge from Active Duty) shows he was discharged in April 1984.  He also
contends that he was not absent without leave (AWOL) for 447 days as
reflected on his DD Form 214.

3.  The applicant provides six service medical records and a copy of his DD
Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 April 1984.  The application submitted in this case is dated
23 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 enlisted in the Regular Army on 7 January 1982 for a
period of 3 years.  He was awarded military occupational specialty 16S
(MANPADS crewman).

4.  Service medical records show the applicant was injured on 21 August
1982 when his vehicle struck an unmarked obstacle and overturned during a
field exercise at Fort Campbell, Kentucky.  He received multiple
lacerations to his face, left eyebrow, nose and upper lip and was
hospitalized for two days for observation.

5.  On 10 December 1982, in accordance with his pleas, the applicant was
convicted by a special court-martial of being AWOL from 1 October 1982 to
11 November 1982 and drunk in station.  He was sentenced to be discharged
from the service with a bad conduct discharge, to be confined at hard labor
for 45 days, to forfeit $382 pay per month for 2 months, and to be reduced
to E-1.  On 10 January 1983, the convening authority approved the sentence
but suspended confinement in excess of 30 days and forfeitures of $382 pay
per month for 1 month for 30 days.

6.  The applicant was placed on excess leave on 14 January 1983.

7.  On 16 June 1983, the U.S. Army Court of Military Review affirmed the
findings of guilty and the sentence.

8.  The bad conduct discharge was ordered to be executed on 28 March 1984.

9.  Accordingly, the applicant was discharged with a bad conduct discharge
on
4 April 1984 under the provisions of Army Regulation 635-200, chapter 3, as
a result of a court-martial.  He had served 2 years, 4 months and 22 days
of total active service with 94 days of lost time due to AWOL and
confinement.  He had 447 days of excess leave (14 January 1983 to 4 April
1984).

10.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 3 of this regulation 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.

11.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness must be of such a degree that a Soldier
is unable to perform the duties of his office, grade, rank or rating in
such a way as to reasonably fulfill the purposes of his employment on
active duty.  Paragraph 4-2 states that a Soldier may not be referred for,
or continue, disability processing if under sentence of dismissal or
punitive discharge.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was discharged in February or
March 1983 and his DD Form 214 shows he was discharged in April 1984,
evidence of record shows the applicant was placed on excess leave from 14
January 1983 to 4 April 1984, for a total of 447 days.  His DD Form 214
does not state he was AWOL for 447 days.  Upon completion of his appellate
review the applicant was discharged on 4 April 1984.

2.  The applicant's contentions relate to evidentiary and procedural
matters which were finally and conclusively adjudicated in the court-
martial appellate process and furnish no basis for recharacterization of
the discharge.

3.  Records show the applicant should have discovered the alleged injustice
now under consideration on 4 April 1984; therefore, the time for the
applicant to file a request for correction of any injustice expired on 3
April 1987.  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

JS______  DJ_____  MF______  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 Slone__________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010715                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19840404                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 3                    |
|DISCHARGE REASON        |As a result of a court-martial          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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