RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 July 2004
      DOCKET NUMBER:   AR2004100765


      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:

|     |Ms. Lana McGlynn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. John Meixell                  |     |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, in effect, that clemency in the form of a
general discharge be granted.

2.  The applicant states that he was only absent without leave (AWOL)
because of marital problems.  He contends that his record of service
reflects that he was a good soldier and patriotic to his country.

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 12 June 1980.  The application submitted in this case is dated
7 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 on 19 October 1976 for a period of 3 years.  He
successfully completed basic combat training.  While in advanced individual
training, on 15 February 1977, nonjudicial punishment was imposed against
the applicant for being AWOL from 2 February 1977 to 7 February 1977.  His
punishment consisted of a forfeiture of pay and extra duty.

4.  Upon completion of advanced individual training the applicant was
awarded military occupational specialty 63G (fuel and electric system
repairman).

5.  On 30 January 1979, nonjudicial punishment was imposed against the
applicant for disobeying a lawful command.  His punishment consisted of a
reduction to E-3, a forfeiture of pay, extra duty and restriction.

6.  On 27 February 1979, nonjudicial punishment was imposed against the
applicant for breaking restriction (two specifications), failure to repair
(four specifications), and behaving with disrespect toward a superior
commissioned officer.  His punishment consisted of a reduction to E-2, a
forfeiture of pay, extra duty and restriction.

7.  On 13 August 1979, in accordance with his pleas, the applicant was
convicted by a special court-martial of being AWOL (two specifications - 23
April 1979 to
18 June 1979 and 26 June 1979 to 22 July 1979) and failure to repair (three
specifications).  He was sentenced to be discharged from the service with a
bad conduct discharge, to be confined at hard labor for 2 months, to be
reduced to
E-1, and to forfeit $100 per month for 2 months.  On 1 October 1979, the
convening authority approved the sentence but suspended confinement at hard
labor in excess of 45 days for the period of time served and six months
thereafter.

8.  On 23 November 1979, the U.S. Army Court of Military Review affirmed
the findings of guilty and the sentence.  The bad conduct discharge was
ordered executed on 6 May 1980.

9.  Accordingly, the applicant was discharged on 12 June 1980 under the
provisions of Army Regulation 635-200, chapter 11, as a result of a court-
martial. He was issued a Bad Conduct Discharge Certificate.  He had served
3 years,
2 months and 28 days of total active service with 146 days lost due to AWOL
and confinement.

10.  On 19 November 1981, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a general discharge.

11.  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.

12.  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.

13.  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.

14.  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.  Marital problems are not grounds for granting clemency in the form of a
discharge upgrade.

2.  The applicant’s record of service included three nonjudicial
punishments, one special court-martial conviction and 146 days of lost
time.  As a result, his record of service was not satisfactory.  Therefore,
clemency in the form of a general discharge is not warranted in this case.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 19 November 1981.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 18 November 1984.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

LM_____  LS______  JM______  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.




            __Lana McGlynn_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100765                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19800612                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 11                   |
|DISCHARGE REASON        |As a result of a court-martial          |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |