RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050002217


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 upgrade of his bad conduct discharge (BCD).

2.  The applicant states, in effect, that the BCD was inequitable because
of the expiration of his term of service (ETS).

3.  The applicant provides copies of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) DA Form 20 (Enlisted Qualification
record) and court-martial orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 May 1980.  The application submitted in this case is dated 3
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 he enlisted and entered service
on 2 April 1976.  He completed training as an infantryman and was stationed
in Germany.

4.  He progressed normally and was advanced to specialist four (E-4) on
3 December 1977.  Then, between 15 June 1978 and 1 March 1979, he received
four nonjudicial punishments under the provisions of Article 15, Uniform
Code of Military Justice (UCMJ) for absence from his appointed place of
duty and three brief AWOLs (absences without leave).

5.  On 25 April 1979, in accordance with his pleas, a special court martial
found the applicant guilty of failure to go to his place of duty, of AWOL
on 12 and 13 March 1979 and of willful disobedience of a noncommissioned
officer.  The approved sentence consisted of forfeiture of $279.00 per
month for 1 month and reduction to pay grade E-1.

6.  The applicant pled guilty before a general court-martial, to two
specifications of possessing heroin and one each of selling and
transferring heroin.  The findings and the 23 August 1979 sentence, which
consisted of total forfeitures, confinement for 1 year and a bad conduct
discharge, were approved and, except for the BCD, ordered executed.

7.  On 25 January 1980 the Army Court of Military Review affirmed the
findings and sentence.  Article 71(c) of the UCMJ having been complied,
with the BCD was ordered executed on 11 April 1980.

8.  The applicant was discharged with a BCD on 30 May 1980.  He had 2
years, 9 months, and 17 days creditable service.  He also had approximately
11 days lost time prior to his ETS and 425 days time lost subsequent to his
ETS.

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 applicant offered no explanation as to how his ETS made the BCD
inequitable and none is discernable.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 May 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 May 1983.  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

_RJF ___  __WDP__  __TMR___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.




                                  _        William D. Powers_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002217                           |
|SUFFIX                  |                                        |
|                        |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19800530                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.06                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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