RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011090


      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. Ronald Blakely                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne 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 that his bad conduct discharge be upgraded.

2.  The applicant states that after his sentence he should have been
awarded a general under honorable conditions discharge.  He states that due
to substance abuse while on active duty his life then was unmanageable.  He
states he is asking for veteran's programs help and notes conditions can
change his life now.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 October 1979.  The application submitted in this case
is dated
2 December 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.  Records available to the Board indicate the applicant enlisted in the
Regular Army and entered active duty on 28 September 1976.  He was 18 years
old at the time with 10 years of formal education and a GT (general
technical) score of 92.  He initially enlisted for training in a specific
specialty which required he be granted a security clearance and when he was
unable to obtain the clearance he waived his enlistment contract and
accepted training in another field which did not require the clearance.

4.  In November 1976, while undergoing basic combat training, the applicant
was punished under Article 15 of the Uniform Code of Military Justice for
having alcoholic beverages in the barracks, a violation of a lawful order.




5.  However, the applicant did successfully complete training and in March
1977 he was assigned to a signal battalion in Korea.  He was promoted to
pay grade E-2 on 28 March 1977.

6.  In July 1977 the applicant was punished under Article 15 of the Uniform
Code of Military Justice (UCMJ) for failing to report to his place of duty.
 In spite of the UCMJ action the applicant was promoted to pay grade E-3 in
October 1977.

7.  In March 1978 the applicant departed Korea and was assigned to a signal
battalion at Fort Gordon, Georgia.  In July 1978 he was punished under
Article 15 of the UCMJ for being unable to perform his duties as a result
of previous indulgence in intoxicating liquor.

8.  On or about 1 August 1978 the applicant was involved in an aggravated
assault and housebreaking incident.  His service medical records indicate
he was being counseled concerning his alcohol abuse in September 1978 and
prescribed Antabuse.

9.  On 20 November 1978 the applicant was found guilty, consistent with his
pleas, by a general court-martial of unlawfully entering the tent of
another Soldier and striking him on the head with an axe.  His sentence
included forfeiture of $200.00 per month for 6 months, confinement at hard
labor for 6 months, and to be discharged from the service with a bad
conduct discharge.  The sentence was approved on 12 December 1978 and
affirmed on 13 February 1979.

10.  A General Court-Martial Order, dated 19 September 1979 indicates "the
sentence to bad conduct discharge, confinement at hard labor for six
months, and forfeiture of $200.00 pay per month for six months (forfeitures
to apply to pay becoming due on and after 12 December 1978, the date of the
convening authority's action), adjudged 20 November 1978, as promulgated in
General Court-Martial Order Number 58, Headquarters US Army Signal Center
and Fort Gordon, Fort Gordon, Georgia 30905, dated 12 December 1978, has
been affirmed pursuant to Article 66.  The provisions of Article 71(c)
having been complied with, the sentence will be duly executed.“   The order
noted that the sentence to confinement was accomplished.

11.  The applicant, who had been placed in an excess leave status on 24
April 1979, was discharged under other than honorable conditions on 5
October 1979. Prior to being placed on excess leave the applicant again
underwent counseling for his alcohol abuse.

12.  Army Regulation 635-200 states that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  It also notes that a general discharge, when authorized,
may be issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
applicant’s bad conduct discharge was appropriate, and executed in
accordance with appropriate laws and regulations.

2.  There is no evidence in available records and the applicant has not
provided any which would support his contention that he should have been
awarded a general discharge after his sentence or that his alcohol abuse
should excuse or justify the behavior which resulted in his conviction by a
general court-martial.  His attempt to turn his life around is commendable
but not sufficiently mitigating to warrant upgrading his discharge as a
matter of equity in this case.

3.  The evidence does show that military officials attempted to assist the
applicant through counseling and medication programs to address his
substance abuse.

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 that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 October 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
4 October 1982.  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

__RB ___  __LF____  __LD  ___  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.




                                  _____ Ronald Blakely______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011090                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|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.                      |                                        |


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