RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 July 2004
      DOCKET NUMBER:  AR2004101125


      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. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Eric N. Anderson              |     |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 his court-martial conviction be
overturned. He also requests payment for the 94 days of excess leave he
used.

2.  The applicant states that he was denied the right to appeal his
conviction upon affirmation by the Court of Military Review.  He also
states that he was not advised that he could appeal his conviction.

3.  The applicant provides an extract from Title 10, U. S. Code, section
866; his DD Form 214 (Certificate of Release or Discharge from Active
Duty); Headquarters,    V Corps Special Court-Martial Order Number 9 dated
29 March 1979; the U. S. Army Court of Military Review Memorandum Opinion
dated 24 May 1979; his separation orders; Headquarters, U. S. Army Training
Center and Fort Dix Special Court-Martial Order number 84 dated 31 August
1979; Headquarters, U. S Army Training Center and Fort Dix letter, dated 22
October 1979, subject:  Separation in Absentia; and an extract from Title
10, U. S. Code, section 953.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on  22 October 1979.  The application submitted in this case is
dated 21 November 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 March 1976.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 63G (Fuel Electrical System Repairman).  He
was assigned to the 15th Maintenance Company, Germany on 19 September 1976.

4.  On 6 January 1979, the applicant was convicted, contrary to his pleas,
of assault and battery and the wrongful sale of heroin.  He was sentenced
to be reduced to private, E-1, to forfeit $270.00 pay per month for six
months, to be
confined at hard labor for six months, and to be discharged with a bad
conduct discharge.
5.  On 24 May 1979, the U. S. Army Court of Military Review affirmed the
findings of guilty and the sentence.

6.  On 20 June 1979, the applicant acknowledged receipt of a copy of the
decision of the U. S. Army Court of Military Review.  He acknowledged that
he was advised as to his right to petition the Court of Military Appeals
for a grant of review with respect to any matter of law within 30 days.

7.  On 20 June 1979, the applicant petitioned the U. S. Court of Military
Appeals for review of his conviction and sentence.

8.  On 19 July 1979, the applicant was placed on excess leave pending
completion of his appellate review.  He acknowledged on the DA Form 31
(Request and Authority for Leave) that he was aware of the fact that
periods of excess leave were without pay and allowances and that no leave
would accrue during the period of excess leave.

9.  On 10 August 1979, the U. S. Court of Military Appeals denied the
applicant's petition for a grant of review.

10.  On 22 October 1979, the applicant was discharged, with a bad conduct
discharge, pursuant to his conviction by court-martial.  He had completed 3
years, 1 month, and 23 days of creditable active service and was on excess
leave for     94 days.

11.  Title 10, U. S. Code, section 876a states that an accused who has been
sentenced by a court-martial may be required to take leave pending
completion of appellate action if the sentence includes an unsuspended
dishonorable or bad conduct discharge.

12.  Title 10, U. S. Code, section 706 states that a member who is required
to take excess leave under section 876a of this title may not accrue leave
or receive pay or allowances during that period of leave.

13.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, the ABCMR's action may extend only to action on the
sentence of a court-martial for purposes of clemency.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention, the evidence of record shows
that, on   20 June 1979, he acknowledged that he was advised as to his
right to petition the Court of Military Appeals for a grant of review with
respect to any matter of law within 30 days.  The evidence of record also
shows that, on 20 June 1979, he petitioned the U. S. Court of Military
Appeals for review of his conviction and sentence.

2.  By law, an accused who is placed on excess leave pending appellate
review may not accrue leave or receive pay or allowances during that period
of leave.  The evidence of record shows that, on 19 July 1979, the
applicant acknowledged that he was aware of this fact.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 October 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on             21 October 1982.  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

__wtm___  __bje___  __ena___  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.




            __Walter T. Morrison__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101125                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040722                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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