RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20050001210


      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             |
|     |Mr. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 discharge under honorable conditions.

2.  The applicant states, in effect, that his BCD was due to youthful
mistakes and errors in judgment.  The applicant further states that he has
been a model citizen since leaving the military and that he needs
Department of Veterans Affairs (DVA) medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge) with an effective date of
22 December 1962.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 December 1962, the date he was discharged.  The application
submitted in this case is dated 11 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 military records show that he enlisted on 18 December
1959 for a period of 3 years.  The applicant had previously completed 5
months and
22 days of active duty for training in the Army National Guard that was
characterized as honorable.

4.  On 23 August 1960, the applicant was convicted by a special court-
martial (SPCM) for being absent without leave (AWOL) during the periods
from 2 May 1960 to 15 June 1960 and from 7 July 1960 to 10 August 1960.
The sentence was approved by the convening authority on 25 August 1960.

5.  On 22 May 1961, the applicant was convicted by a summary court-martial
(SCM) for failure to obey a lawful order from a commissioned officer.  The
sentence was approved by the convening authority on 22 May 1961.

6.  On 10 February 1962, the applicant was convicted by a SCM for two
specifications of being absent from his appointed place of duty.  The
sentence was approved by the convening authority 10 February 1962.

7.  On 19 September 1962, the applicant was convicted by a general court-
martial for being AWOL during the period from 16 March 1962 to 16 July
1962.  His sentence consisted of forfeiture of all pay and allowances,
confinement for
6 months, and a BCD.  The sentence was approved by the convening authority
on 17 October 1962.

8.  On 11 December 1962, the findings of guilty and the sentence as
approved by the convening authority were affirmed.

9.  On 22 December 1962, the applicant was discharged as a result of "Other
than desertion (court-martial)" with a BCD.  He had completed 1 year, 9
months and 23 days of active service and he had 433 days of time lost.

10.  The records show that the applicant was over 20 years old at the time
of his last period of AWOL.  The records further show that the applicant
was 21 years old at the time of his discharge.

11.  Army Regulation 635-204 (Personnel Separations, Dishonorable and Bad
Conduct Discharge), in effect at the time, stated that an enlisted person
will be discharged with a BCD pursuant only to an approved sentence of a
general or special court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be
upgraded because he has been a model citizen since his discharge and he
needs DVA medical benefits.  The applicant further contends that his
discharge was due to youthful mistakes and errors in judgment.

2.  The evidence shows that the applicant was over 20 years old and had
over 1 year of experience in the Army when he went AWOL.  Therefore, it is
reasonable to presume that the applicant was well aware of the requirements
of good order and discipline and his responsibility to follow Army
regulations.  Therefore, the applicant's contention that his discharge was
due to youthful errors and mistakes is not supported by the evidence of
record.

3.  The evidence shows that 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 the discharge appropriately characterizes the
misconduct for which he was convicted.

4.  Any redress by this Board of the finality of a court-martial conviction
is prohibited by law.  The Board is only empowered to change a discharge if
clemency is determined to be appropriate to moderate the severity of the
sentence imposed.

5.  The applicant's statement concerning his post service achievements and
conduct are noted.  However, good post service conduct alone is not
normally sufficient for upgrading a properly issued discharge.

6.  The applicant did not submit sufficient evidence in support of his
request for upgrade.  The applicant’s record of service was carefully
considered.  However, given the seriousness of the offenses for which he
was convicted, his service record was not considered sufficiently
meritorious to warrant clemency in this case.  As a result, there is no
evidentiary or equitable basis upon which to support the applicant’s
request to upgrade his discharge at this time.

7.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  In addition, granting veteran's
benefits is not within the purview of the ABCMR and any questions regarding
eligibility for veteran's  benefits should be addressed to the DVA.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 December 1962, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 21 December 1965.  Although
the applicant is requesting a grant of clemency based on good post-service
conduct, he has not provided any evidence of post-service achievement or
good conduct. In the absence of such evidence, it is not in the interest of
justice to excuse the applicant's failure to timely file within the 3-year
statute of limitations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____alr__  ____mhm  ___lds___  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.




                                  ______Melvin H. Meyer________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001210                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051027                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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