RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20040011277


      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 Vick                    |     |Chairperson          |
|     |Mr. Ronald Weaver                 |     |Member               |
|     |Mr. Robert Rogers                 |     |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.

2.  The applicant states that he volunteered to serve in the Army and he
hoped to go to Vietnam.  He contends the Army treated him unfairly and did
not consider all sides of the story.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 December 1976.  The application submitted in this case is
dated
1 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 on 29 September 1973 for a period of 2 years.
He was awarded military occupational specialty 71T (equipment maintenance).

4.  On 12 March 1974, contrary to his pleas, the applicant was convicted by
a general court-martial of being absent without leave (AWOL) from 4
November 1973 to 14 November 1973 and maiming another Soldier (striking him
in the left eye with his fist causing the loss of vision in his eye).  He
was sentenced to be confined at hard labor for one year and to forfeit $100
pay per month for 12 months.  On 28 August 1974, the convening authority
approved only so much of the sentence as provided for confinement at hard
labor for 6 months and forfeiture of $100 pay per month for 6 months.  He
suspended the unexecuted portion of the sentence to forfeiture of $100 pay
per month for 6 months until
25 September 1974.

5.  On 25 March 1975, nonjudicial punishment was imposed against the
applicant for being AWOL from his appointed place of duty (two
specifications) (3 and 1/2 hours and one day).  His punishment consisted of
a reduction to E-1 (suspended), a forfeiture of pay (suspended),
restriction, and extra duty.  On
8 April 1975, the suspended reduction and forfeiture of pay portion of the
applicant’s sentence was vacated.

6.  On 21 April 1975, nonjudicial punishment was imposed against the
applicant for failure to repair and disobeying a lawful order.  His
punishment consisted of restriction and extra duty.

7.  On 6 June 1975, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a forfeiture
of pay, restriction, and extra duty.

8.  On 9 September 1975, the applicant was convicted by a special court-
martial of failing to obey a lawful order and being AWOL from 11 June 1975
to 23 June 1975.  He was sentenced to be discharged from the service with a
bad conduct discharge, to forfeit $200 pay per month for 4 months, and to
be confined at hard labor for 10 weeks.  On 5 November 1975, the convening
authority approved the sentence.

9.  On 22 March 1976, the U.S. Army Court of Military Review affirmed the
findings of guilty and the sentence.  The bad conduct discharge was ordered
to be executed on 6 May 1976.

10.  Accordingly, the applicant was discharged with a bad conduct discharge
on 17 December 1976 under the provisions of Army Regulation 635-200,
chapter 11, as a result of a court-martial.  He had served 2 years, 11
months and 27 days of total active service with 81 days of lost time due to
AWOL and confinement.

11.  There is no indication in the available records which shows the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

12.  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.

13.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records 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.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record of service included three nonjudicial
punishments, one special court-martial conviction, one general court-
martial conviction and 81 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.

2.  Records show the applicant should have discovered the alleged injustice
now under consideration on 17 December 1976; therefore, the time for the
applicant to file a request for correction of any injustice expired on 16
December 1979.  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

JV_____  RW______  RR_____  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 Vick_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011277                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19761217                                |
|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.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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