RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050002387


      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 that his bad conduct discharge be upgraded to a
general under honorable conditions discharge.

2.  The applicant states that he was falsely enlisted: "they knew I had a
felony at the time yet [they] ignored it and enlisted me anyway."  He
became an alcoholic in the service and he had to leave because his brother
was killed.  His behavior changed and, after that, he has no recollection
as to what he was doing.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 February 1981.  The application submitted in this case is
dated 30 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 enlistment application (DD Form 1966/4, block 40) shows
he answered "NO" to all questions dealing with any involvement with the
police or judicial authorities.  He entered active duty on 8 March 1979,
completed training as an artilleryman, and was ordered to Germany.

4.  He was absent without leave (AWOL) on 22 July 1979 and surrendered to
military authorities on 23 November 1979.  He was then AWOL, confined,
released, and AWOL again.

5.  On 5 June 1980, the applicant was convicted by special court-martial of
the following offenses, in accordance with his pleas of guilty: being AWOL
from
22 July 1979 to 23 November 1979, assaulting a noncommissioned officer
(NCO), using disrespectful language to an NCO, another instance of using

disrespectful language to an NCO, communicating a threat, and assaulting a
private with a means likely to inflict grievous bodily harm.

6.  The military judge sentenced the applicant to confinement at hard labor
for
1 month, forfeiture of $299.00 per month for 6 months, and a BCD.  The
convening authority approved only the forfeitures and the BCD.  The
applicant was placed on appellate leave.

7.  On 3 November 1980, the Army Court of Military Review affirmed the
findings of guilty and the sentence but noted that, since there was no
confinement, the forfeitures could not be applied until the sentence was
ordered into execution.

8.  On 29 January 1981, having complied with Article 71(c) of the Uniform
Code of Military Justice, the sentence was ordered executed.

9.  The applicant was discharged on 23 February 1981.  He had 1 year,
5 months, and 21 days of creditable service and 297 days of lost time.

10.  The applicant apparently did not petition the Army Discharge Review
Board to review his discharge during the 15-year period of eligibility.

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.  There is no available evidence to substantiate the applicant's
assertions and no convincing argument that, even if substantiated, they
would sufficiently mitigate his conduct so as to warrant an upgrade of the
discharge.

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.  The time for the applicant to file a request for correction of any
error or injustice to this Board expired on 22 February 1984.  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

__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                 |AR20050002387                           |
|SUFFIX                  |                                        |
|RECON                   |20050105                                |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19810223                                |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |106.00                                  |
|                        |142.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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