RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050002377


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 most of his Article 15s are false
and his separation was unjust at the time of his discharge.

3.  The applicant adds that he has suffered enough over the last 23 years.

4.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty of 12 August 1982 and refers to his
service record in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 August 1982, the date of his discharge.  The
application submitted in this case is dated 2 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.  The applicant also wrote on his application the wording "SECOND
REQUEST."  However, ABCMR records do not show he submitted a previous
request.

4.  The applicant's military service record shows he initially entered
active duty on 6 July 1975.  Records also show the applicant did not
complete basic training and was not awarded a military occupational
specialty.  On 24 July 1975, the applicant was honorably discharged in
accordance with the Trainee Discharge Program.

5.  The applicant reenlisted in the Regular Army on 28 December 1976.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 76C1P (Equipment Records and Parts
Specialist).  He was then transferred for Airborne Training at Fort
Benning, Georgia.  Upon completion of his Airborne Training, he was
reassigned for duty at Fort Bragg, North Carolina.

6.  The applicant's service records reveal a disciplinary history that
includes non-judicial punishment (NJP) under the provisions of Article 15
of the Uniform Code of Military Justice (UCMJ) for the following offenses
as indicated:  on 23 February 1978, for failure to go at the time
prescribed to his appointed place of duty on 21 February 1978; on 4 January
1979, for being absent without leave (AWOL) from 27 December 1978 through
28 December 1978; on 16 March 1979, for being disrespectful towards a
superior commissioned officer by failing to salute him upon recognition on
14 March 1979; on 20 June 1979, for failure to go at the time prescribed to
his appointed place of duty on 17 June 1979; on 5 July 1979, for failure to
go at the time prescribed to his appointed place of duty on 28 June 1979
(two offenses) and on 29 June 1979 (one offense), which the applicant
appealed and the appeal was denied; and on 30 June 1982, for going from his
appointed place of duty on 25 June 1982 and disobeying a lawful order from
a noncommissioned officer on 25 June 1982.

7.  On 17 July 1979, the 1st Battalion (Airborne) of the 325th Infantry at
Fort Bragg, North Carolina, listed the applicant as AWOL.

8.  Headquarters, US Army Training Center and Fort Dix, New Jersey Special
Court-Martial Order Number 78, dated 2 September 1980, shows the applicant
was convicted on 7 July 1980 pursuant to his plea of guilty, of being AWOL
for the period 17 July 1979 until 26 January 1980.  He was sentenced to
confinement at hard labor for four months, to forfeit $299.00 pay per month
for four months, and to be discharged from the service with a bad conduct
discharge.

9.  Headquarters, United States Disciplinary Barracks, Fort Leavenworth,
Kansas Special Court-Martial Order Number 313, dated 20 October 1980,
modified the applicant's sentence to show effective 10 October 1980,
forfeiture of $299.00 pay per month for 4 months is suspended.  The order
also shows the suspended portion of the sentence shall be remitted without
further action for 6 months, unless the suspension is sooner vacated.
Having served the period of confinement adjudged on 7 July 1980, he was
restored to duty pending completion of appellate review.

10.  On 28 January 1981, the United States Army Court of Military Review
found the findings of guilty and sentence as approved by proper authority
correct in law and fact.  The United States Army Court of Military Review
affirmed the findings and the sentence.

11.  The applicant was notified of the decision of the United States Army
Court of Military Review on 5 February 1981.

12.  Evidence of record shows that on 4 March 1981 the applicant was
granted indefinite excess leave status to go home awaiting separation
processing.

13.  Special Court-Martial Order Number 92, dated 14 July 1982, affirmed
the sentence adjudged on 7 July 1980 and directed that the sentence be duly
executed.

14.  The applicant was issued a DD Form 214 which shows that he was
discharged under the provisions of chapter 11 of Army Regulation 635-200 on
12 August 1982, with a bad conduct discharge as a result of court martial.
His DD Form 214 also shows that during this period of enlistment he
completed 4 years, 9 months, and 8 days of military service and had 164
days of lost time due to AWOL prior to the expiration of his term of
service.  The DD Form 214 also shows that he had 141 days lost after
expiration of this term of service.

15.  There is no evidence the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11, in effect at the time,
established policy and procedures for separating members with a
dishonorable or bad conduct discharge. The regulation provided that a
soldier would be given a bad conduct discharge pursuant only to an approved
sentence of a general or special court-martial.  It further provided the
appellate review must be completed and the affirmed sentence ordered duly
executed.

17.  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.

18.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

19.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7,
provides that an honorable discharge is a separation with honor and
entitles the recipient to benefits provided by law.  The honorable
characterization is appropriate when the quality of the member’s service
generally has met the standards of acceptable conduct and performance of
duty for Army personnel (emphasis added), or is otherwise so meritorious
that any other characterization would be clearly inappropriate.  Whenever
there is doubt, it is to be resolved in favor of the individual.

20.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR 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 contends that his bad conduct discharge should be
upgraded because most of his Article 15's were false and his separation was
unjust at the time of his discharge.

2.  The applicant's record of service shows he received six nonjudicial
punishments for offenses including AWOL, disrespect to a superior officer,
and disobeying a lawful order from a noncommissioned officer.

3.  The applicant's record of service further shows that during his period
of enlistment from 28 December 1976 through 12 August 1982, he had
completed 4 years, 9 months, and 8 days at the time of his discharge and he
had 164 days lost due to AWOL and confinement.

4.  Evidence shows the applicant was tried and convicted for being AWOL by
a special court-martial and, which his sentence included discharge with a
Bad Conduct Discharge.



5.  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.

6.  The Manual for Courts-Martial, in effect at that time, shows that the
applicant did not receive the maximum punishment for the offenses for which
he was convicted.

7.  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.

8.  Based on his record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to a grant of clemency in the
form of a general discharge or an honorable discharge.

9.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.

10.  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.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 August 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 11 August 1985.  However, 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

__BPI___  _EM____  _DWS____  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.




            _Bernard P. Ingold__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002377                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |12 Aug82                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 11.                    |
|DISCHARGE REASON        |As a result of Court Martial, other     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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