RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050005716


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montogmery          |     |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.

2.  The applicant states that if his discharge is upgraded, it would
provide him the opportunity to prove his loyalty to our country.  The
applicant continues that he has a great desire to assist fellow veterans
and will provide great contributions to the American Legion.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge); a DD Form 215 (Correction
to DD Form 214, Armed Forces of the United States Report of Transfer or
Discharge); and a self-authored letter, dated 9 April 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 November 1964.  The application submitted in this case is
dated 9 April 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 enlisted in the Army on 13 November 1962 for a period of
three years.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 321.10 (Lineman) and
assigned to the 41st Signal Battalion, Fort Lewis, Washington.

4.  The applicant's service records 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) on
the following three separate occasions for the offenses indicated:  on 7
November 1963, for failure to obey a lawful order and failure to perform
assigned duties; on 11 December 1963; for missing formation and failure to
obey a lawful order; and on 3 February 1964, for failure to go to his
appointed place of duty.
5.  Headquarters Fort Lewis General Court-Martial Order Number 54, dated
28 May 1964, shows that the applicant pled guilty and was found guilty,
pursuant his plea, of selling military property, larceny of government
property, and housebreaking into government facilities.

6.  His sentence consisted of a forfeiture of all pay and allowances,
reduction to the rank of private/pay grade E-1, confinement at hard labor
for a period of two years, and to be discharged from the service with a bad
conduct discharge.  On 28 May 1964, the convening authority approved only
so much of the sentence as provided for a bad conduct discharge, forfeiture
of all pay and allowances, reduction to E-1, and confinement for 18 months.
 The applicant was confined at the United States Disciplinary Barracks,
Fort Leavenworth, Kansas.

7.  On 6 August 1964, the Board of Review, Office of the Judge Advocate
General, affirmed the conviction, but modified the sentence by reducing the
confinement to one year.

8.  Headquarters Fort Leavenworth General Court-Martial Order Number 852,
dated 26 October 1964, announced the affirmance of the findings of guilty
and only so much of the sentence promulgated in General Court-Martial Order
54, as provides for bad conduct discharge, forfeiture of all pay and
allowances, confinement at hard labor for one year and reduction to the
grade of Private/E-1.

9.  The applicant was discharged from the Regular Army, effective 7
November 1964, under the provisions of paragraph 1b of Army Regulation 635-
204 and paragraph 9 of Army Regulation 601-210 and furnished a Bad Conduct
Discharge Certificate.  He completed 1 year, 4 months, and 27 days of
active duty with 212 days of lost time due to confinement.

10.  The applicant submitted a self-authored letter, dated 9 April 2005,
wherein he states he was a good soldier through advanced individual
training and when he was assigned to his permanent duty station.  He
continues that around September 1964, some fellow Soldiers asked him to
drive a loaded truck for them since he was the only one with a valid
driver's license.  The applicant contends that he was not aware, nor
informed, that the property in the truck belonged to the United States
Army.

11.  The applicant further states that, regardless of his lack of
knowledge, he was arrested, tried and found guilty of transporting stolen
government property.  He continued that he served three months of his
sentence and served 18 months on parole without incident.  The applicant
concludes that, before and since the incident, he has proven to be an
upstanding citizen in this community.
12.  Army Regulation 635-204 (Personnel Separations Dishonorable and Bad-
Conduct Discharge), paragraph 1b, provides that a bad conduct discharge
will only be given to a pursuant approved sentence of a general or special
court-martial imposing a bad conduct discharge.

13.  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.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative
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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  Evidence shows the applicant was tried and convicted by general court-
martial for selling military property, larceny of government property, and
housebreaking into government facilities.

3.  Trial by court-martial was warranted by the gravity of the offenses.
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.
4.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Additionally, his service is deemed unsatisfactory in
view of his theft of Government property and substantial lost time.
Therefore, he is not entitled to clemency in the form of a general or an
honorable discharge.

5.  The applicant's post-service conduct reflects favorably on him.
However, good post service conduct alone is not a basis for upgrading a
discharge and does not mitigate his indiscipline in the Army, particularly
in view of the amount of bad time and his other offenses.

6.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 November 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 6 November 1967.  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__  _EEM__  _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                 |AR20050005716                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1964/11/07                              |
|DISCHARGE AUTHORITY     |AR 635-204                              |
|DISCHARGE REASON        |General court-martial                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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