RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 November 2005
      DOCKET NUMBER:  AR20050004753


      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 believes that his discharge is
inequitable, because it was based on one incident and not character of
service.  He served over 3 years of service.

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 19 August 1980, the date he was released from active duty.
 The application submitted in this case was received on 17 March 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 8 March 1977, 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) 11H00 (Heavy Anti-Armor Weapons Crewman).  The highest
grade he attained was pay grade E-4.

4.  On 24 April 1979, the applicant accepted nonjudicial punishment for
assaulting a German National by unlawfully grabbing and unlawfully striking
him with his fist.  His imposed punishment was a reduction to pay grade E-
3,
60 days restriction (30 days of the said 60 days suspended for a period of
120 days), to perform 45 days of extra duty (15 days of the said 45 days
suspended for a period of 120 days).

5.  On 28 September 1979, the applicant was convicted at a General Court-
Marital convened by Headquarters, 8th Infantry Division, APO New York, of
larceny of a portable television, a radio cassette recorder, a pocket
calculator, a suede coat, an electric razor, a collimeter, a hunting knife,
a laundry bag, an alarm clock, speaker wire, a sleeping bag and four
cartons of cigarettes, of a total value in excess of $100.00, and assault
upon a German National female.  He was sentenced to a Dishonorable
Discharge; to forfeit all pay and allowances; confinement at hard labor for
a period of 3 years; and to be reduced to the lowest enlisted pay grade.
The convening authority approved the sentence on
27 December 1979 and the record of trial was forwarded to The Judge
Advocate General of the Army for review by the Court of Military Review.

6.  On 28 April 1980, the United States Army Court of Military Review
affirmed the sentence and the findings of guilty and ordered it duly
executed.  The applicant petitioned the United States Court of Military
Appeals for a grant of review.  On 2 July 1980, the applicant’s petition
for a grant of review was denied.

7.  On 5 August 1980, the Army Clemency Board mitigated the applicant’s
Dishonorable Discharge to a Bad Conduct Discharge.

8.  On 19 August 1980, the applicant was discharged under the provisions
Army regulation 635-200, Para 11-2, as a result of a court-martial with a
BCD.  He had completed 2 years, 6 months and 19 days of creditable active
military service and 326 days of time lost.

9.  On 2 July 1981, the applicant was released from confinement on parole.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Para. 11-2, 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.

11.  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.

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 should have discovered the alleged error or
injustice now under consideration on 19 August 1980.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 18 August 1983.  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
timely 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                 |AR20050004753                           |
|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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