RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 August 2005
      DOCKET NUMBER:  AR20040011310


      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. Beverly A. Young              |     |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 that his bad conduct discharge be upgraded to a
general under honorable conditions or honorable discharge.

2.  The applicant states that he has been an upstanding citizen in his
community with no criminal record.  He states that he was young and did not
know how to be critical or how to rebut what his commander did to him.  He
also states that he was treated unfairly and given a bad conduct discharge
for something he did not do.  He wants his name cleared.

3.  The applicant provides a supplemental letter, a copy of his DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge), a page
from his DA Form 20 (Enlisted Qualification Record), a copy of his DA Form
20B (Insert Sheet to DA Form 20), and a medical statement from Parkland
Memorial Hospital.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 January 1973.  The application submitted in this case is
dated 16 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 on 5 December 1969 at 21
years of age.

4.  On 9 December 1971, the applicant pled guilty to wrongfully
appropriating a television of a value of $40.00 and was convicted by a
special court-martial of stealing a Sharp television, valued at $40.00.  He
was sentenced to a bad conduct discharge, confinement at hard labor for 80
days, a forfeiture of $40.00 pay per month for 3 months and reduction to
private E-1.



5.  On 8 September 1972, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence.  The bad conduct
discharge was ordered to be executed on 26 October 1972.

6.  The applicant was discharged on 12 January 1973 under the provisions of
Army Regulation 635-200, chapter 11 based on court-martial, other than
desertion.  He completed 2 years, 11 months and 6 days creditable active
service with 63 days of lost time due to confinement.

7.  On 6 October 1981, the Army Discharge Review Board (ADRB) denied the
applicant's request to recharacterize his discharge.

8.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor.  Issuance of an honorable discharge
is predicated upon proper military behavior and proficient performance of
duty during the member's current enlistment or period of obligated service
with due consideration to the member's age, length of service and general
aptitude.  Where a member has served faithfully and performed to the best
of his or her ability, an honorable discharge certificate should be
furnished.

9.  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.

10.  Section 1552(f), Title 10, United States Code states that 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 (UCMJ) or to take
clemency action.

11.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's service record shows he was charged with stealing a
television.  He was 22 years old at the time of the offense.

2.  It is noted that the trial by court-martial was warranted by the
gravity of the offense 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.

3.  There is insufficient evidence to substantiate the applicant's claims
that he was treated unfairly and given a bad conduct discharge for
something he did not do.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 October 1981, the date of the ADRB
review; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 5 October 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

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                 |AR20040011310                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19730112                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 11                   |
|DISCHARGE REASON        |Court-Martial, other than desertion     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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