RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 November 2005
      DOCKET NUMBER:  AR20040011197


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 his Bad Conduct Discharge (BCD) be upgraded to
an Honorable Discharge (HD).

2.  The applicant states it has been more than 20 years since the acts that
caused his discharge.  He states he was innocent of the charges and the
entire matter was a personal issue between him and a sergeant.

3.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 June 1981.  The application submitted in this case is
dated 7 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.  The applicant enlisted in the Regular Army for 3 years on 20 January
1976.  He was separated with an HD on 7 November 1978 for the purpose of
immediate reenlistment.  On 8 November 1978, he reenlisted for 4 years.

4.  During his first enlistment, the applicant accepted nonjudicial
punishment (NJP) under Article 15, Uniform Code of Military Justice, for
disobeying the lawful order of a sergeant on/about 3 March 1977, and for
disobeying the lawful order of a superior commissioned officer on/about 3
March 1977.  His punishment included reduction to the rank of private (E-
1), forfeiture of $150.00 pay per month for 2 months, and 45 days of extra
duty.

5.  During his second period of enlistment, the applicant had two alcohol-
related incidents.  At 2030 hours, 22 March 1980, he jumped out a second
story window while in an intoxicated state.  He was treated for a chin
laceration and possible internal injuries.  At 0200 hours, 7 April 1980, he
was again treated for a laceration, this time to his right armpit area.  He
was extremely intoxicated and
uncooperative during medical treatment.  He contended that he fell into a
window, breaking the glass and cutting himself in the process.  The medical
doctor who treated him suspected a knife wound.

6.  On 16 May 1980, the applicant was tried by a Special Court-Martial.  He
pled guilty and was found guilty of disobeying the lawful order of a
sergeant, his superior noncommissioned officer; reckless operation of a
Government vehicle; being absent without leave (AWOL) on four occasions;
failing to go to his appointed place of duty on two occasions; and breaking
restriction on two occasions.  He was sentenced to a BCD, confinement at
hard labor for 2 months, and reduction to the rank of private (E-1).

7.  On 15 April 1981, Special Court-Martial Order Number 30, Headquarters,
7th Infantry Division, Fort Ord, California affirmed the sentence and
directed the execution of the BCD.  The applicant was discharged with a BCD
on 15 June 1981 under the provisions of chapter 11, Army Regulation (AR)
635-200.

8.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 11, of the regulation then in effect, provided
that a Soldier would be given a BCD pursuant only to an approved sentence
to a General Court-Martial or Special Court-Martial.  The appellate review
must have been completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not shown that his problems while in the Army were
the result of personal animus on the part of his sergeant.

2.  The applicant's contention that he was not guilty of the offenses for
which he was convicted is not accepted.  The applicant admitted guilt to
all of the offenses for which he was convicted.

3.  Trial by court-martial was warranted by the gravity of the offenses
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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 June 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
14 June 1984.  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

__le____  __jed___  __jrm___  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.



                                        Lester Echols
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011197                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051117                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19810615                                |
|DISCHARGE AUTHORITY     |AR 635-200 C11                          |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0000                                |
|2.                      |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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