RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        JANUARY 27, 2005
      DOCKET NUMBER:  AR2004106231


      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:

|     |Mr. Raymond J. Wager              |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 discharge and that the narrative reason and authority for the
discharge be changed.

2.  The applicant states that his representation at his court-martial trial
was inadequate and that he was not properly counseled about his options to
remain in the Army on active duty versus receiving a BCD.  He states that
his discharge resulted from a drinking problem that he had while he was in
Korea.  He states that drinking was going on 24 hours a day to pass time.
He states that he only had one Article 15 and that he got into only a few
fights.  He goes on to state that during his court-martial, the judge gave
him an option of remaining in his service and that he made a bad choice to
be discharged.  He states that he had finally beaten his addiction and that
he is trying to further his life, education and career choices.  He states
that he has not had a drink or any drugs at all in 18 years and that he has
completed a few drug and alcohol programs.  He states that it would be nice
to finally be able to tell employers that he has a better discharge or to
reenter the Army.  He concludes by stating that it would be a big help to
be able to take advantage of schooling or training or to be able to receive
medication.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 6 July 1982.  The application submitted in
this case is dated 16 March 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.  On 2 September 1980, he enlisted in the Army for 3 years in the pay
grade of E-1.  He successfully completed his training as an infantryman.
On 1 February 1981, he was promoted to the pay grade of E-2.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 4 May
1981, for failure to remain at his appointed place of duty.  His punishment
consisted of a reduction to the pay grade of E-1, a forfeiture of pay in
the amount of $118.00, 14 days restriction and 14 days extra duty.

5.  On 7 May 1981, NJP was imposed against him for possession of marijuana.
 His punishment consisted of a forfeiture of pay in the amount of $118.00,
14 days extra duty and 14 days restriction.

6.  He had NJP imposed against him again on 5 August 1981, for wrongfully
appropriating two cans of spray paint.  However, the record is void of the
punishment imposed.

7.  On 24 August 1981, the applicant was convicted, pursuant to his pleas,
by a special court-martial of two specifications of being disrespectful in
language towards his superior commissioned officers; one specification of
offering violence against his superior commissioned officer; one
specification of striking his superior commissioned officer in the face
with his foot; one specification of striking his superior noncommissioned
officer in the side with his fist; one specification of assaulting a
soldier by swinging at him with his fist; one specification of striking a
civilian by pushing him with his hands and punching him in the face with
his fist; one specification of communicating a threat to his superior
commissioned officer; and two specification of being drunk and disorderly.
He plead guilty to the charges and was sentenced to a BCD, confinement at
hard labor for 169 days and a forfeiture of pay in the amount of $334.00
per month for 6 months.

8.  The convening authority approved the sentence as adjudged.  However, on
18 May 1982, special orders were published at the United States
Disciplinary Barracks, Fort Leavenworth, Kansas, indicating that the
portion of the applicant’s conviction pertaining to the charge of his being
disrespectful towards his superior noncommissioned officer (specification 1
of charge 1) was set aside and the specification was dismissed.  The orders
indicate that only so much of the findings of guilty as provided
(assaulting a soldier by swinging at him with his fist and striking his
superior commissioned officer in the face with his foot) was affirmed.  The
orders also indicate that the remaining findings of guilty and only so much
of the sentence as provided for a BCD; a forfeiture of $334.00 per month
for 3 months; and confinement at hard labor for 3 months and been affirmed
and the orders directed that the sentence be executed.



9.  Accordingly, on 6 July 82, he was discharged under the provisions of
Army Regulation 635-200, chapter 11, pursuant to a duly reviewed and
affirmed
court-martial conviction.  He had completed 1 year, 4 months and 29 days of
total active service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 19 October 1983, the ADRB denied the applicant’s
request for upgrade.  The ADRB determined that the applicant’s discharge
was proper and equitable and that the discharge was properly characterized
as a BCD.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of that regulation states, 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.

12.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board 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.

13.  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 United States 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 Army Board for Correction
of Military Records (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.  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.

2.  The type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted.  However, they are not
sufficiently mitigating to warrant relief when compared to the seriousness
of his offenses and his overall undistinguished record of service.  He had
NJP imposed against on three separate occasions and he was convicted by a
special
court-martial as a result of his bad conduct.

4.  There is no evidence in the available record nor has the applicant
submitted any evidence to support his contentions that he had an alcohol
problem while he was in the Army or that he had inadequate counsel during
his trial and in the absence of evidence to the contrary, it must be
presumed that he was adequately represented by counsel.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 19 October 1983.
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 October 1986.  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

elp_____  bkk _____  rjw_____  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.




                                  ____Raymond J. Wagner__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106231                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050127                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19820706                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 11/SPCM CONVICTION              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  546  |144.3900.0000/ACT BY SPCM AUTHORITY     |
|2.  675                 |144.6800.0000/BCD                       |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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