RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2005
      DOCKET NUMBER:  AR20050000864


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Ms. Carmen Duncan                 |     |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, an upgrade of his Bad Conduct
Discharge (BCD).

2.  The applicant states, in effect, that he was too young to know better
and that he had family problems.  His wife was sick and later died and he
needed help.  He was left with two small children.  He asked for help and
he got none.  He also worked for over 30 years to get this problem out of
his mind.  He states that he cannot live this down and he has worked very
hard to correct this problem.  He further states, that he had 2 years of
satisfactory duty with the 82nd Airborne Division at Fort Bragg, North
Carolina.  He tried to get help from the Red Cross, they called his unit,
but they did not help.  At his court-martial, he told his unit that he
needed help and he did not get any help.  He had several other
confrontations that occurred but he still did not get any help.  He went
back several times to Fort Ord, California to ask for help but to no avail.
 After his court-martial, he was sentenced to 6 months in confinement and a
bad conduct discharge.  He felt very bad about it, but he also had to help
his family.

3.  The applicant provides a copy of his military records, a copy of his DD
Form 214, a letter from the Presidential Clemency Board, a copy of his
General Educational Development (GED), 30 copies of Certificates of
Accomplishments, Commendations and Training Awards from his job and a self-
authored letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 20 October 1969.  The application submitted in this case
was received on 13 January 2005.

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 limitations 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’s record shows that he enlisted in the Regular Army and
entered active duty on 30 August 1963.  He was trained in, awarded and
served in military occupational specialty (MOS) 11C (Infantryman Indirect
Fire Crew Member) and the highest rank he attained while serving on active
duty was private first class (PFC) pay grade E-3.

4.  On 23 November 1965, the applicant was convicted by a Special Court-
Martial of being absent without leave (AWOL) for the period of 1 September
1965 through 11 October 1965.  He was sentenced to confinement at hard
labor for two months (suspended for two months), a forfeiture of $83.00 pay
for three months, and a reduction to the rank of private/pay grade E-1.

5.  On 14 January 1966, the applicant accepted nonjudicial punishment for
disobeying a lawful order and for being disrespectful to a Noncommissioned
Officer.  His imposed punishment was a forfeiture of $19.00 pay and 7 days
of restriction.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows that
the applicant went AWOL on many different occasions.  However, it is
difficult to decipher AWOL time from confinement time because of the
overlapping of the AWOL and confinement time periods.

7.  On 8 August 1969, the applicant was convicted at a SPCM convened by
United States Army Training Center, Infantry & Fort Ord, California, of two
specifications of being AWOL from 16 March 1968 through 9 April 1968 and
from 6 May 1968 through 2 July 1969.  He was sentenced to a BCD,
confinement at hard labor for a period of three months and a reduction to
the rank of private/pay grade E-1.  The sentence was approved by the
convening authority on 28 August 1969 and the record of trial was forwarded
to The Judge Advocate General of the Army for review by the army court of
military review.  On 29 September 1969, the United States Army Court of
Military Review affirmed the sentence and the finding of guilty and ordered
it duly executed.  The record indicates that the applicant waived his
rights to a review from the United States Court of Military Appeals.

8.  On 20 October 1969, the applicant underwent a medical examination and
was found fit for retention.

9.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows he was discharged on 20 October 1969 under the provisions of Army
regulation 635-204, as a result of a court-martial with a BCD.  He had
completed 2 years,
10 months and 24 days of creditable active military service.


10.  Army Regulation 635-204 set forth the basic authority for the
separation of enlisted personnel.  In effect at the time, it provided the
policies and procedures for separating members with a dishonorable or bad
conduct discharge.  It stipulated that a Soldier would be given a bad
conduct discharge pursuant only to an approved sentence of a general or
special court-martial and that, the appellate review must be completed and
the affirmed sentence ordered duly executed.

11.  On 2 February 1976, the applicant was issued a correction of his DD
Form 214, which shows he received a Clemency Discharge in recognition of
satisfactory completion of alternate service pursuant to PP# 4313.

12.  In PP # 4313, dated 16 September 1974, the President announced a
clemency program designed to provide deserters an opportunity to work their
way back into American society.  This proclamation pertained to all
individuals who were carried administratively as deserters if their last
period of AWOL was between 4 August 1964 and 28 March 1973.  Under this
program, eligible enlisted deserters were offered the opportunity to
request an undesirable discharge for the good of the service if they agreed
to perform alternate service under the supervision of the Selective Service
System.  Successful completion of alternate service entitled a participant
to receive a Clemency Discharge Certificate.

13.  Clemency Discharges issued pursuant to PP# 4313 did not impact the
underlying discharge a member received and did not entitle the individual
to any benefits administered by the Department of Veterans Affairs.  The
Army Discharge Review Board adopted the policy that a Clemency Discharge
would be considered by a board in its deliberations but that the discharge
per se did not automatically require relief be granted.

14.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgrade because he
was too young and that he had family problems were carefully considered and
found to be insufficient evidence in supporting his request.  The
applicant’s record shows that he was 21 years of age at the time of the
offenses.  There is no evidence that indicates that he was any less mature
than any other Soldier of the same age who successfully completed military
service.  The applicant contends that family problems led to his BCD.
There is no evidence nor has the applicant provided any evidence to show
that he asked for help at anytime before deciding to go AWOL.  Therefore,
given the circumstances in this case and his overall undistinguished record
of service, there is insufficient evidence to support his claim.

2.  The applicant’s contentions regarding his good post service conduct and
achievements were carefully considered.  The applicant’s good post service
conduct is commendable, but is not so meritorious as to warrant an upgrade
of his discharge.

3.  The evidence of record confirms the applicant’s trial by court-martial
was warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
and regulations and his rights were protected throughout the court-martial
process.  There is no evidence in the applicant’s record nor has he
presented any evidence to warrant relief beyond that already provided by
receiving a clemency discharge.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 October 1969.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 19 October 1972.  However, he failed to 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

__MDM  _  __LCB__  ___CD    _  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.




                                  _____Mark D. Manning _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000864                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051004                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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