RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 November 2005
      DOCKET NUMBER:  AR20050002366


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughnessy Jr.   |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 awarded the Good Conduct
Medal, that people change in time and that he was young, but he was a good
Soldier.  He further states, that his mother died during his enlistment and
that is what caused his problems.

3.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 February 1984, the date he was released from active
duty.  The application submitted in this case was received on 6 February
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. On 11 April 1978, the applicant enlisted in the Regular Army for a
period of
3 years. He was trained in, awarded, and served in military occupational
specialty (MOS) 19E10 (Armor Crewman).  On 26 March 1981, he extended his
initial 3-year enlistment to a 4-year enlistment.  On 11 January 1982, the
applicant was honorably discharged after serving 4 years, 1 month, and 5
days of active service.

4.  The applicant’s record shows that during his first enlistment he
accepted
four nonjudicial punishments (NJP) for two occasions of failure to go to
his appointed place, for the wrongful possession of Marijuana, and for
being absent without leave (AWOL) for 3 days.  The applicant’s record also
shows that he was barred from reenlistment.  However, the Bar to
Reenlistment Certificate was removed and destroyed.  The remark “Not
recommended for further service” was deleted from his 2-1 (Personnel
Qualification Record).  The applicant’s record also shows that he received
the Good Conduct Medal during this enlistment period.

5.  On 12 January 1982, the applicant immediately reenlisted for a period
of
5 years.  The highest grade he attained was pay grade E-4.

6.  On 25 August 1982, the applicant accepted NJP for the wrongful
possession of Marijuana.  His imposed punishment was a reduction to pay
grade E-1, a forfeiture of $275.00 pay per month for 2 months, and 45 days
restriction and extra duty.

7.  On 8 December 1982, the applicant was convicted at a SPCM convened by
United States Army Infantry Center & Fort Benning, Georgia, of two
specifications of being AWOL from 25 August 1982 through 29 September 1982
and from 2 October 1982 through 7 October 1982; failure to go at the
prescribed time his appointed place of duty; for unlawfully kicking another
Soldier with his foot; and for communicating a threat to injure the same
Soldier.  He was sentenced to a BCD, confinement at hard labor for a period
of three months, and a forfeiture of $382.00 pay per month for 4 months.
The sentence was approved by the convening authority on 1 March 1983 and
the record of trial was forwarded to The Judge Advocate General of the Army
for review by the court of military review.

8.  On 9 March 1983, a mental status evaluation and a physical examination
cleared the applicant for separation.

9.  On 13 January 1984, the United States Army Court of Military Review
affirmed the sentence and the finding of guilty and ordered it duly
executed.  The record does not indicate that the applicant petitioned the
United States Court of Military Appeals for a grant of review.

10.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows he was discharged on 15 February 1984 under the provisions Army
regulation 635-200, Chapter 3 Section IV, as a result of a court-martial
with a BCD.  He had completed 5 years, 1 month, and 16 days of creditable
active military service.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, in effect at the time,
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.

12.  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.

13.  On 6 June 1995, the Army Discharge Review Board (ADRB) determined that
the applicant’s discharge was proper and equitable and it voted to deny the
applicant’s request for an upgrade of his discharge.

14.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, there
is insufficient evidence to support granting the requested relief.

2.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that based on his disciplinary history and
the seriousness of the offenses for which he was convicted, clemency would
not be appropriate in this case.

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.

4.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  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.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 6 June 1995.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 5 June 1998.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __TEO __  __CAK __  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.




                                  ___James E. Anderholm___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002366                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051101                                |
|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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