RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            12 August 2004
      DOCKET NUMBER:   AR2004100396


      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             |
|     |Mrs. Phyllis Perkins              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Ann Campbell                  |     |Chairperson          |
|     |Mr. James Anderholm               |     |Member               |
|     |Mr. John Infante                  |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 characterization of service of "UNDER
CONDITIONS OTHER THAN HONORABLE" be changed to "under honorable
conditions."

2.  The applicant states that his undesirable discharge was inequitable
because it was based on one isolated incident in 26 months of service with
no other adverse action.

3.  The applicant provides a self-authored letter, dated 28 October 2003.
This letter states that he is applying for upgrade of his undesirable
discharge and transmits a copy of a DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) with an effective date of 8 June
1964 and a copy of a DD Form 214 with an effective date of 8 May 1965.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 May 1965, the date of the applicant's separation from the
Army with a Bad Conduct Discharge Certificate.  The application submitted
in this case is dated 28 October 2003.

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 in the Regular Army on 1 June 1962 for a period
of 3 years.  He completed training and was awarded the military
occupational specialty of 112 (Heavy Weapons Infantryman).  He was advanced
to pay grade E-3 and was honorably discharged on 8 June 1964.

4.  The applicant reenlisted for a period of six years on 9 June 1964.

5.  Records show that the applicant was absent without leave (AWOL) during
the period 16 August 1964 to 22 September 1964.




6.  On 28 October 1964, the applicant was convicted by a special court-
martial of being absent without leave (AWOL) from 16 August 1964 to 22
September 1964, failing to go to his appointed place of duty on 28
September 1964, being disrespectful in language toward his superior non-
commissioned officer on 28 September 1964, and willfully disobeying a
lawful order on 28 September 1964.  He was sentenced to forfeiture of
$73.00 for five months and to confinement at hard labor for five months.
The sentence was approved and the applicant was confined at the stockade at
Fort George G. Meade, Maryland.

7.  Records show that the applicant escaped from confinement at Fort Meade
on 5 November 1964 and was apprehended later that same day.

8.  On 5 February 1965, the applicant was convicted by a General Court-
Martial of absenting himself without proper authority from his lawful place
of confinement until he was apprehended, willfully disobeying a lawful
command, willfully disobeying a lawful order and escaping from lawful
confinement.  He pleaded guilty.  He was sentenced to a Bad Conduct
Discharge, to confinement at hard labor for one year, and to forfeiture of
all pay and allowances.  The convening authority approved the sentence on
24 February 1965 with the exception that the applicant's confinement at
hard labor was reduced to nine months based on a pretrial commitment
entered into by the convening authority.

9.  The Board of Review of the United States Army Judiciary considered the
applicant's General Court-Martial conviction.  The Board of Review affirmed
the findings of guilty and the sentence on 11 March 1965.  Records show
that the decision of the Board of Review was served on the applicant on 23
March 1965.

10.  The applicant was transferred to the United States Disciplinary
Barracks at Fort Leavenworth, Kansas, to serve his confinement.  United
States Disciplinary Barracks General Court-Martial Order Number 290, dated
23 April 1965, ordered the sentence executed.

11.  DD Forms 1477 (Prisoner's Progress Summary Data) prepared on 23 June
1965 show that the applicant's confinement began on 28 October 1964 and
that his current sentence was confinement at hard labor for 14 months.
This form also shows that his current release date was 4 October 1965 and
that his maximum release date was 27 December 1965.








12.  Office of the Provost Marshal General letter, dated 29 July 1965,
announced that, in the applicant's case, parole had been denied, but that
clemency had been approved.  The letter further indicated that the grant of
clemency authorized remission of the unexecuted portions of all of the
applicant's sentences effective 1 September 1965.  Records show that
remission of the sentence of the General
Court-Martial resulted in a discharge date effective on or about 8 May
1965.  Remission of the sentence remaining resulted in a discharge date of
1 September 1965.

13.  United States Disciplinary Barracks Special Orders Number 85, dated
3 May 1965, show that the applicant's Bad Conduct Discharge was executed
effective 8 May 1965.  These orders show that he was discharged under
conditions other than honorable with a Bad Conduct Discharge Certificate
(DD Form 259A). Special instructions in these orders stated, in effect,
that the applicant would be separated on 8 May 1965 by order of the
Secretary of the Army.

14.  The applicant's DD Form 214 with an effective date of 8 May 1965 shows
that he was discharged under conditions other than honorable on 8 May 1965,
under the provisions of paragraph 1b, Army Regulation 635-204, with a
separation program number (SPN) of 292.  Army Regulation 635-5 (Separation
Documents), in effect at the time, shows that that SPN 292 indicates
separation of enlisted personnel by reason of "Other than desertion (courts-
martial)."

15.  United States Disciplinary Barracks Special Orders Number 162, dated
17 August 1965, discharged the applicant with a Bad Conduct Discharge
effective 1 September 1965.

16.  The applicant's records contain a United States Disciplinary Barracks
STATEMENT OF RELEASE FROM CONFINEMENT, dated 1 September 1965.  The first
paragraph of this document states that the applicant was released from
confinement on 1 September 1965.  The second paragraph of this document
states that the applicant's Bad Conduct Discharge was executed on the "8th
day of May, 1965."

17.  There is no evidence the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

18.  Army Regulation 635-204 (Personnel Separations) provided for
separation of enlisted personnel with a dishonorable discharge pursuant to
an approved sentence of a general court-martial.  This regulation also
provided for separation of enlisted personnel with a bad conduct discharge
based on an approved sentence of a general court-martial or a special court-
martial imposing a bad conduct discharge.  This regulation further required
that when the discharge is for a reason other than desertion, the reason
and authority for discharge will be shown as "AR 635-204, SPN 292."
19.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, section 1552, the authority under which this Board acts, the Army
Board for Correction of Military Records is not empowered to set aside a
conviction.  Rather it is only empowered to change the severity of the
sentence imposed in the court-martial
process and then only if clemency is determined to be appropriate.
Clemency is an act of mercy, or instance of leniency, to moderate the
severity of the punishment imposed.

20.  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 requests that the characterization of service shown as
under conditions other than honorable on his DD Form 214 with an effective
date of 8 May 1965 should be changed to under honorable conditions.

2.  The applicant contends that his characterization of service should be
upgraded to under honorable conditions because his undesirable discharge
was inequitable since it was based on one isolated incident.

3.  Contrary to the applicant's contention, his record of service shows
offenses of AWOL, failing to go to his appointed place of duty, being
disrespectful in language toward his superior non-commissioned officer, and
willfully disobeying a lawful order from August to September 1964.  For
these offenses he was tried and convicted in October 1964 by a special
court-martial.

4.  Further, the applicant's records show that in November 1964 he absented
himself without proper authority from his lawful place of confinement until
he was apprehended, willfully disobeyed a lawful command, willfully
disobeyed a lawful order and escaped from lawful confinement.  For these
offenses, the applicant was tried and convicted by a general court-martial
in February 1965.

5.  The applicant is correct that his record shows approximately 26 months
of good service.  However, his record of service also shows several
different instances of misconduct, a special court-martial, a general court-
martial and over 200 days lost due to AWOL and confinement.


6.  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.

7.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

8.  After review of the applicant’s entire record of service, it was not
considered sufficiently meritorious to warrant clemency in this case.
Given the seriousness of the offenses for which he was convicted and his
lost time, it is also clear that his service was not satisfactory, thus did
not meet the criterion for discharge under honorable conditions.
Therefore, his discharge under conditions other than honorable is
equitable, and there is no basis for changing his character of service to
"under honorable conditions" as requested.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1965 the effective date of his
discharge.  Therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 7 May 1968.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ja____  __amc __  __ji  ____  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.




            ____Ann Campbell  _____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100396                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/08/12                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1965/05/08                              |
|DISCHARGE AUTHORITY     |AR 635-204                              |
|DISCHARGE REASON        |Other than desertion                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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