RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          25 January 2005
      DOCKET NUMBER:  AR2004107116


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderhom             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 undesirable discharge (UD)
be upgraded to that of a general discharge (GD) under honorable conditions
or to a fully honorable discharge (HD).

2.  The applicant states no contentions.

3.  The applicant provides in support of his request a copy of a:

      a.  Letter, dated 7 February 1975, from the Presidential Clemency
Board, Washington, DC, advising him that he may be eligible for a review of
his discharge under the provisions of the Department of the Defense (DOD)
Special Discharge Review Program (SDRP).

      b.  Letter, dated 11 May 1977, from the Department of the Army,
Office of the Adjutant General, Reserve Components Personnel and
Administration Center, St. Louis, Missouri, which advised the applicant he
was authorized a review of his discharge under the SDRP.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 November 1970.  The application submitted in this case is dated 7 April
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 6 March 1968, the applicant was inducted into the Army of the United
States.  He completed the training requirements and he was awarded military
occupational specialty (MOS) 71H, Personnel Specialist.

4.  On 12 July 1968, the applicant left Fort Huachuca, Arizona enroute to
Fort Bragg, North Carolina and, when he failed to report, he was placed in
an absent without leave (AWOL) status from 31 July to 12 September 1968.

5.  The applicant was AWOL from the Overseas Replacement Station, Fort
Lewis, Washington from 16 March to 3 June 1969 when he turned himself in to
the Special Processing Detachment (SPD), Fort Ord, California.

6.  The applicant was AWOL from the SPD, Fort Ord from 8 June to 22 October
1969 and from 10 November 1969 to 24 April 1970.

7.  On 26 June 1970, the applicant was convicted by a special court-martial
of the above three periods of AWOL.  He was sentenced to reduction from pay
grade E-3 to pay grade E-1, restriction to the limits of Fort Ord for a
period of
60 days and to be separated with a BCD.

8.  On 4 August 1970, 60 days of excess leave was approved for the
applicant, pending completion of his court-martial appellate review
process.  On 26 August 1970, the sentence was approved.

9.  On 29 October 1970, the findings were affirmed and the sentence was
approved.  The appropriate authority ordered the BCD to be duly executed.

10.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows that on 2 November 1970, he was separated
under the provisions of chapter 11, Army Regulation 635-200 (currently
chapter 3, Army Regulation 635-200), with a BCD, as a result of conviction
by a special court-martial.  He completed 1 year, 4 months, and 7 days of
active military service.  He also had 471 days of lost time due to being
AWOL and in military confinement.  He was present and authenticated his
discharge document with his signature.

11.  On 31 December 1976, the applicant appealed to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge under the provisions of
the SDRP travel panel at Salt Lake City, Utah.  Apparently, the applicant
failed to appear.  The available record does not contain any evidence that
shows his case was ever reviewed as a result of a travel panel or by a
records-only review.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, paragraph 3-11, provides that
a soldier will be given a BCD 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.
13.  Courts-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, United States
Code, Section
1552, the authority under which this Board acts, the ABCMR is empowered to
change the severity of the sentence imposed in the court-martial process
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.  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 available record shows the applicant was eligible for a review of
his record under provisions of the SDRP.  However, it appears that he
failed to appear before the SDRP travel panel at Salt Lake City and his
case was never heard.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 November 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
1 November 1973.  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

__kan___  __jea___  __lmd___  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.



                                  Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR200410716                             |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050125                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19701102                                |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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