RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         27 October 2005
      DOCKET NUMBER:  AR20050003080


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 general, under
honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states, in effect, his discharge was unjust and there was
a lack of evidence in his court-martial.  He claims he has lived with his
discharge for
17 years and began to pursue an upgrade of his discharge in order to
rebuild his life.

3.  The applicant provides a two page self-authored statement in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 April 1977.  The application submitted in this case is
dated
29 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 record shows he enlisted in the Army and entered active
duty on 29 April 1976.  He was trained in, awarded and served in military
occupational specialty (MOS) 36C00 (Telephone Installation and Lineman).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) and his conviction by a special court-martial
(SPCM).

5.  On 18 May 1976, the applicant accepted NJP for being absent without
leave from on or about 10 May 1976 through on or about 15 May 1976.  His
punishment for this offense included a forfeiture of $84.00 for one month
and seven days extra duty for seven consecutive days.

6.  On 12 October 1976, a SPCM, contrary to his pleas, convicted the
applicant of two specifications of violating Article 134 of the Uniform
Code of Military Justice (UCMJ) by wrongfully communicating threats.  He
was also convicted of violating Article 121 of the UCMJ by stealing four
money orders valued at about $238.00.  The resultant sentence included a
forfeiture of $240.00 per month for five months, confinement to hard labor
for five months and a bad conduct discharge (BCD).

7.  On 21 December 1976, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence pertaining to the
applicant after having determined that they were correct in law and fact.

8.  On 11 January 1977, the United States Court of Military Appeals denied
the applicant’s petition for a grant of review.

9.  On 15 March 1977, SPCM Order 110, issued by Headquarters, United States
Disciplinary Barracks, Fort Leavenworth, Kansas, directed, Article 71c of
the UCMJ having been complied with, that the unexecuted portion of the
applicant’s approved sentence be duly executed.  On 13 April 1977, the
applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant on the date of his separation,

13 April 1977, shows that he was separated with a BCD under the provisions
of chapter 11, Army Regulation 635-200, by reason of court-martial.  It
also shows that at the time of his separation, he had completed a total of
5 months and
2 days of creditable active military service and had accrued 193 days of
time lost due to AWOL and confinement.

11.  On 22 May 1980 the Army Discharge Review Board (ADRB) reviewed the
applicant’s application for upgrade of discharge from BCD to HD.  The ADRB,
after reviewing the applicant’s overall record, voted to upgrade his
discharge to a GD.  The basis for the upgrade was the applicant’s youth and
immaturity, and the fact that he already had been approved for separation
under the provision of the Trainee Discharge Program (TDP) prior to his
court-martial conviction. The ADRB further indicated that the quality of
the applicant’s service did not warrant an upgrade of his discharge to an
HD.  The ADRB also reconsidered the applicant’s case and denied his request
to upgrade his discharge from GD to HD on 15 September 1992.

12.  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 evidence of record shows that the applicant’s trial by court-
martial was warranted by the seriousness of the offenses for which he was
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and his discharge, as amended by the ADRB
decision, appropriately characterizes the misconduct for which he was
convicted.

2.  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 the aforementioned requirement.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 15 September 1992.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 14 September 1995.  However, he 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 file in this case.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM_  __ALR __  __LDS__  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.




                                  _____Melvin H. Meyer  ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003080                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-10-27                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1977/04/13                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch11 . . .                  |
|DISCHARGE REASON        |Result of Court Martial                 |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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