RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 November 2004
      DOCKET NUMBER:  AR2004103987


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert J. Osborn, II          |     |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 his bad conduct discharge (BCD)
be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he cannot justify his poor
conduct, except to say that he was just young and immature.  Over the past
30 years, he has grown up and become a mature, responsible, law-abiding
citizen.  He deeply regrets his actions and desires to clear his name.

3.  The applicant provides in support of his request a statement from his
wife and an employer.  Both statements indicate the applicant is a good,
hardworking, and dependable person.  The applicant also provides copies of
his DD Forms 214 (Armed Forces of the United States Report of Transfer or
Discharge) issued on
7 July 1970 and on 21 February 1973.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 February 1973.  The application submitted in this case is
dated 29 January 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 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 was born on 4 August 1952.  Prior to the period of
service under review, the applicant enlisted in the Regular Army on 29
August 1969, at age 17, with a declaration of parental consent signed by
both of his parents.  He served honorably until he separated for immediate
reenlistment on 7 July 1970.  A DD Form 214 was issued at the time of
separation.

4.  On 8 July 1970, at age 17, the applicant reenlisted in the RA with a
declaration of parental consent, dated 7 July 1970 and signed by both of
his parents.  He reenlisted for 3 years, military occupational specialty
(MOS) 95B, Military Policeman, and in pay grade E-3.

5.  On 20 July 1970, while assigned to Fort Benning, Georgia, nonjudicial
punishment (NJP) under the provisions of Article 15, Uniform Code of
Military Justice (UCMJ), was imposed against the applicant for, through
neglect, damaging the left front door and fender of a military police sedan
on 12 July 1970 and for disobeying a lawful order given by a specialist on
15 July 1970.  His punishment included a forfeiture of $35.00 pay per month
for 1 month and 7 days of extra duty and restriction.

6.  On 9 November 1970, NJP was imposed against the applicant for failing
to go to his appointed place of duty at the time prescribed on 6 and 9
November 1970. His punishment included a forfeiture of $44.00 pay per month
for 1 month.

7.  On 7 December 1970, NJP was imposed against the applicant for failing
to maintain alertness to traffic entering and leaving the Fort Benning
Military Reservation on 6 December 1970 and for failing to get a haircut on
7 December 1970.  His punishment included reduction from pay grade E-4 to
pay grade E-3 (suspended for 1 month) and 14 days of restriction.

8.  On 6 August 1971, he was transferred to Fort Gordon, Georgia.

9.  On 11 January 1972, the applicant was convicted by a special court-
martial
of the wrongful sale of marihuana on 16 October 1971.  He was sentenced to
receive a BCD, confinement at hard labor for 3 months, and the forfeiture
of $100.00 pay per month for 3 months.  On 23 February 1972, the sentence
was approved.

10.  On 19 December 1972, the United States Court of Military Review
affirmed the finding and approved the sentence of the special court-
martial.

11.  On 12 February 1973, the unexecuted portion of the sentence pertaining
to confinement at hard labor for 3 months and the forfeiture of $100.00 pay
per month for 3 months were remitted effective the date of the applicant's
discharge.

12.  On 21 February 1973, the applicant was discharged with a BCD under the
provisions of chapter 11, Army Regulation 635-200, as a result of a court-
martial. His DD Form 214 shows he had served 2 years, 2 months and 21 days
of net service during this period, with 10 months and 9 days of other
service.  He also had 146 days of lost time.

13.  Evidence of record indicates the applicant applied to the Army
Discharge Review Board in 2004, which was past that board's 15-year statute
of limitation.

14.  Court-martial convictions stand as adjudged or modified by appeal
through the judiciary 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 change a
discharge due to matters which should have been raised in the appellate
process, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's age and maturity level was considered.  Although he
enlisted at 17 years of age, he met all entrance qualification standards,
to include age (with a parental waiver).  There is no evidence that he was
any less mature than other soldiers of the same age who successfully
completed their military service obligation.  It is also noted that at the
time of the offense for which he received a BCD, the applicant was almost
19 years of age and had been on active duty for more than 1 year.

2.  Trial by court-martial was warranted by the gravity of the offenses
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.  The applicant has offered letters from his wife and an employer
attesting to his post-service conduct and accomplishments.  These letters,
while laudable, do not provide sufficient justification to form a basis for
upgrading his discharge as a matter of clemency.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 February 1973; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
20 February 1976.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fe____  __jtm___  __rjo___  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.


                                  Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103987                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041123                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19730221                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 11                      |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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