RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          4 August 2005
      DOCKET NUMBER:  AR20040011237


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |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, in effect, that clemency in the form of an
honorable discharge or general discharge be granted.

2.  The applicant states, in effect, he was the victim of circumstance by
being in the wrong place at the wrong time.  He contends he was told that
if he provided a statement there would be leniency in his case.  He also
contends he has a medical condition that put him on disability and he needs
help with this condition for treatment and medicine.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge) and a copy of the Investigating Officer’s Report.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 October 1972.  The application submitted in this case is
dated
17 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 on 31 January 1969 for a period of 3 years. He
successfully completed basic combat training and advanced individual
training in military occupational specialty 62B (engineer equipment
repairman).

4.  On 6 November 1970, nonjudicial punishment was imposed against the
applicant for absenting himself from his place of duty.  His punishment
consisted of a reduction to E-3, restriction for 14 days, and extra duty
for 14 days.

5.  On 8 December 1970, nonjudicial punishment was imposed against the
applicant for being an accomplice in a robbery.  His punishment consisted
of a reduction to E-1, a forfeiture of $66 per month for 2 months,
restriction for 45 days, and extra duty for 45 days.

6.  On 14 January 1971, the applicant was convicted pursuant to his pleas
by a general court-martial of committing assault upon another Soldier with
a dangerous weapon (by branding him on the back of his right hand with a
heated coat hanger) and using and transferring hashish.  He was sentenced
to be discharged from the service with a bad conduct discharge, to be
confined at hard labor for 9 months, to be reduced to E-1, and to forfeit
all pay and allowances.  On 26 April 1971, the convening authority approved
the sentence.

7.  The decision of the U.S. Army Court of Military Review is not
available.
On 14 September 1972, the U.S. Court of Military Appeals denied the
applicant's petition for grant of review.  On 3 October 1972, the bad
conduct discharge was ordered to be executed.

8.  Accordingly, the applicant was discharged on 11 October 1972 under the
provisions of Army Regulation 635-200 for other than desertion (court-
martial).  He was issued a Bad Conduct Discharge Certificate.  He had
served 3 years and 1 month of creditable active service with 223 days lost
due to confinement.

9.  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 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.

10.  Section 1552(f), Title 10, United States Code states 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.

11.  Army Regulation 635-200, paragraph 3-7, provides 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.

12.  Army Regulation 635-200, paragraph 3-7, provides 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.



DISCUSSION AND CONCLUSIONS:

1.  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.

2.  A discharge is not upgraded for the sole purpose of obtaining
Department of Veteran Affairs benefits.

3.  Evidence of record shows the applicant was discharged with a bad
conduct discharge for using and transferring hashish, and assaulting
another Soldier with a heated coat hanger.  As a result, his record of
service was not satisfactory and did not meet the standards of acceptable
conduct and performance for Army personnel.  Therefore, clemency in the
form of an honorable discharge or general discharge is not warranted in
this case.

4.  The applicant has failed to show the general court-martial proceedings
were not conducted in accordance with law and regulations applicable at the
time or that he was denied due process.  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.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 11 October 1972; therefore, the time for the
applicant to file a request for correction of any injustice expired on 10
October 1975.  The applicant did not file within the 3-year statute of
limitations and has not provided a compelling explanation or evidence to
show 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

JA_____  RD______  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.




            _James Anderholm______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011237                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19721011                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 11                  |
|DISCHARGE REASON        |Other than desertion (court-martial)    |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]