RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2005
      DOCKET NUMBER:  AR20050001249


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J.N. Troup              |     |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 be
upgraded.

2.  The applicant states, in effect, that his discharge was unjust.  The
applicant adds that he sought assistance in correcting this injustice some
years ago, but his request was apparently mishandled and never submitted to
the proper authority.

3.  The applicant provides a one-page, self-authored statement, two DD
Forms 214 (Armed Forces of the United States Report of Transfer or
Discharge), dated 28 September 1970 and 10 September 1975; a Federal Bureau
of Investigation (FBI) letter, dated 17 September 1974; an undated, self-
authored narrative about his war experiences; two letters of reference;
five training certificates; a certificate of appreciation; a special act or
service award; gaming license; security officer identification; and a
psychological evaluation report.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 September 1975, the date of his discharge.  The application
submitted in this case is dated 24 October 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 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 records show that he enlisted on 29 August 1969.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B (Light Weapons Infantryman).

4.  The applicant’s records show that he served seven months in the
Republic of Vietnam, from 2 December 1970 through 28 July 1971.  He was
awarded the Combat Infantryman Badge, Purple Heart for wounds in action on
11 April 1971, and Army Commendation Medal for meritorious service from
December 1970 to August 1971.

5.  A DA Form 3545 (Deserter Wanted by the Armed Forces), dated
8 December 1971, shows the applicant went absent without leave (AWOL) on
16 August 1971 and was dropped from the rolls on 16 September 1971.

6.  The applicant’s records contain Fort Campbell, Kentucky, Special Court-
Marital Order Number 17, dated 3 April 1972, that shows the applicant was
convicted of being AWOL for the period 16 August 1971 through 4 January
1972. His punishment was confinement at hard labor for three months (with
60 days being suspended), forfeiture of $150.00 pay for three months, and
reduction to the rank of private/pay grade E-1.

7.  A DA Form 3835 (Notice of Unauthorized Absence from United States
Army), dated 13 August 1973, shows the applicant was reported AWOL from his
unit beginning 14 July 1973 and dropped from the rolls of the organization
on
9 August 1973.  He was returned to military control on 4 November 1973.

8.  A DA Form 3835, dated 17 January 1974, shows the applicant was reported
AWOL on 10 January 1974 and was dropped from the rolls of the organization
that same date.  He was returned to military control on 22 January 1974.

9.  On 15 February 1974, the applicant was convicted by special-court
martial for being AWOL for the period 14 July 1973 through 4 November 1973.
 His punishment was a bad conduct discharge, confinement at hard labor for
one month, forfeiture of $150.00 pay for one month, and reduction to the
rank of private/pay grade E-1.  The sentence was approved and promulgated
by Fort Carson, Colorado, Special Court-Marital Order Number 71, dated 3
May 1974.

10.  A DA Form 3835, dated 7 May 1974, shows the applicant was reported
AWOL from his unit beginning 7 April 1974 and dropped from the rolls of the
organization on 7 May 1974.

11.  On 8 July 1974, the U.S. Army Court of Military Review, reviewed and
affirmed the findings and sentence.  The personnel records show that the
decision was mailed to the applicant's home of record and he indicated he
did not desire to appeal further, and requested final action be taken on
his case.

12.  The service records show that on 6 September 1974, the brigadier
general serving as acting commander of Fort Carson, Colorado, approved
execution of applicant's sentence.

13.  U.S. Army Military Personnel Center [Alexandria, Virginia] Letter
Order Number 9-4, dated 10 September 1975, discharged the applicant with a
Bad Conduct Discharge.  The applicant's records show that he was advised of
his discharge via letter and his separation documents were also mailed to
him on that date.

14.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows he was discharged on 10 September 1975 under the provisions of
chapter 11 of Army Regulation 635-200 (Personnel Separations – Enlisted
Personnel).  Applicant served 3 years, 8 months, and 13 days of active
service, with 248 days of time lost due to AWOL.

15.  Personnel records show the applicant acknowledged receipt his of
discharge documents on Post Office Department Form 3811, dated 24 September
1975.

16.  On 21 August 1986, an attorney representing the applicant, requested
documents from the applicant's records in an effort to upgrade his
discharge.

17.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

18.  The applicant's self-authored statement states that he called his
company while at home to notify them he would be a day late in returning.
He states that he was told he didn't need to return since he was close to
his expiration of term of service.  There is no evidence in the applicant's
military personnel service records to substantiate that he telephonically
contacted his unit and was told that he didn't need to return.

19.  The applicant provided a Department of Health and Human Services,
Confidential Psychological Evaluation, dated 25 October 2004, which
documents the applicant's evaluation for persistent psychological symptoms
that the applicant links to injuries and traumatic events suffered while
serving in Vietnam. The evaluating psychologist recommended forwarding the
evaluation material for consideration by those specializing in this
disorder at the Veterans Administration.  There is no evidence in the
applicant's military personnel service records that he was diagnosed with
and/or treated for psychological symptoms.






20.  Army Regulation 635-200, in effect at that time, governs the
separation of enlisted Soldiers on active duty.  Section IV of chapter 3
provides that a bad conduct discharge will be given to a Soldier 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.

21.  Court-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 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 moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be
upgraded because he performed approximately three and a half years of
honorable service.

2.  The evidence shows that the applicant's character of service was
honorable during his first enlistment of one year and 29 days when he was
discharged for immediate reenlistment and subsequently served in the
Republic of Vietnam.

3.  Upon return to the United States, the applicant went AWOL and was
dropped from the rolls on three separate occasions.  He was in a dropped
from the rolls status when apprehended by civilian authorities and
subsequently discharged. The applicant provided insufficient evidence, and
there is no evidence in the available records, which supports his
contention that his bad conduct discharge should be upgraded.

4.  The applicant provided letters of support and training certificates
attesting to his good post-service conduct.  While his post-service conduct
is noteworthy, good post-service conduct by itself is not sufficient to
overcome his military record of indiscipline, or a basis for upgrading his
discharge.

5.  The applicant provided insufficient evidence, and there is no evidence
in available records, that shows he was diagnosed or treated for any
illnesses that were the result of his military service.

6.  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.

7.  By law, any redress by the ABCMR of the finality of a court-martial
conviction is prohibited.  The ABCMR is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

8.  In order to justify correction of a military record the applicant must
show to the satisfaction of the ABCMR, or it must otherwise satisfactorily
appear, that the record was in error or unjust.  The applicant did not
submit any evidence that would satisfy this requirement.

9.  The applicant does not warrant an upgrade and did not provide
sufficient evidence for granting the relief requested.  It would be
inappropriate to grant clemency based on the facts in this case.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 September 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
23 September 1978.  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__  __WDP__  __MJNT _  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                 |AR20050001249                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19750910                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 11                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.6300.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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