RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        JANUARY 4, 2005
      DOCKET NUMBER:  AR2004105295


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr James B. Gunlicks              |     |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 (BCD) be upgraded
to a general or an honorable discharge.

2.  The applicant states that he was a combat veteran in Vietnam and that
he was unjustly discharged after he began having problems.

3.  The applicant provides in support of his application, copies of his
discharge summary; intake screenings; annual reviews; and an Adult
Outpatient Program Individual Plan Of Service, which were conducted on him
by the Genesee County Community Mental Health Services.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 4 December 1972.  The application submitted in
this case is dated 19 February 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.  He was inducted into the Army in Memphis, Tennessee, on 12 September
1969 and he successfully completed his training as a light weapons
infantryman. He was promoted to the pay grade of E-2 on 12 January 1970 and
he was transferred to Vietnam on 15 February 1970.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on
11 March 1970, for being absent from his unit without leave (AWOL) from 4
March until 10 March 1970.  His punishment consisted of a reduction in pay
grade.

5.  The applicant was convicted by a special court-martial on 15 August
1970, of disobeying a lawful command and of failure to go to his appointed
place of duty.  He was sentenced to confinement at hard labor, a reduction
in pay grade and a forfeiture of pay.

6.  On 5 November 1970, he was convicted by a special court-martial of
failure to obey a lawful order.  He was sentenced to confinement at hard
labor and a forfeiture of pay.

7.  On 16 May 1971, the applicant was convicted by a special court-martial
of two specifications of willfully disobeying a lawful order.  He was
sentenced to a BCD and confinement at hard labor.

8.  On 6 August 1971, the convening authority approved the sentence as
adjudged and on 31 July 1972, Special Court-Martial Order number 24 was
published by Headquarters, 2D Armored Division, Fort Hood, Texas,
indicating that his sentence had been affirmed and directing the execution
of his BCD.

9.  Accordingly, on 4 December 1972, the applicant was discharged under the
provisions of Army Regulation 635-200, chapter 11, as a result of a duly
reviewed and affirmed special court-martial conviction.  He had completed
2 years, 8 months and 24 days of total active service and he was furnished
a BCD.

10.  A review of the available record shows that the Army Discharge Review
Board denied the applicant’s request for an upgrade of his discharge on
12 February 1977 and again on 21 July 1980.

11.  The documentation that the applicant has submitted in support of his
application from the Genesee County Community Mental Health Services shows
that the applicant was admitted on 5 June 1995 and subsequently diagnosed
as having Post Traumatic Stress Disorder (PTSD), chronic, with underlying
substance abuse patterns.

12.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 11 of that regulation
stated, in pertinent part, that a member will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial, after completion of appellate review and after such affirmed
sentence has been ordered duly executed.

13.  Title 10, United Stated Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that 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 modify the
severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was properly discharged pursuant to a sentence by a
special court-martial conviction with no indication of any violation of his
rights.

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’s contentions have been noted.  However, he had NJP
imposed against him and he was convicted by three special courts-martial as
a result of his acts of misconduct.  The charges against him were too
serious and his record of service is too undistinguished to warrant relief
in his case.

4.  Consideration has also been given to the medical documentation that the
applicant has submitted in his own behalf.  However, the applicant was
discharged from the Army on 4 December 1972 and there is no evidence in the
available record that shows that he suffered from PTSD while he was in the
Army.  While the Board is empathetic, the applicant's personal problems are
not sufficiently mitigating to warrant an upgrade of his discharge.

5.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 July 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 20 July 1983.  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

jbg   ____  rld    ____  kh   _____  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.




                                  _____Karen A. Heinz__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105295                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050104                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19721204                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 11/BCD                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  675  |144.6800.0000/BCD                       |
|2.  678                 |1446803.0000/SERIOUSNESS OF OFFENSE     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]