RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050005730


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Ms. Qawiy A. Sabree               |     |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 clemency in the form of an
upgrade to his bad conduct discharge be granted.

2.  The applicant states, in effect, that he wishes a discharge upgrade for
medical and education benefits.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 October 1974.  The application submitted in this case is
dated 8 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 Regular Army on 14 June 1972 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 76A (Supply Clerk).

4.  The applicant's initial court-martial orders are not available.

5.  A DA Form 2800 (CID Report of Investigation), dated 5 February 1974,
shows that on 31 January 1974 the applicant was convicted by a special
court-martial of taking indecent acts or liberties with a female under 16
years of age.  He was sentenced to be issued a Bad Conduct Discharge, to be
reduced to private/pay grade E-1, to be confined at hard labor for five
months (two months confinement suspended for six months), and to forfeit
$215.00 pay per month for five months.

6.  On 29 August 1974, the U.S. Army Court of Military Review (USACMR)
affirmed the finding of guilty and the sentence.

7.  Headquarters, U.S. Disciplinary Barracks Court-Martial Order Number
589, dated 17 September 1974 ordered the Bad Conduct Discharge be executed.
8.  On 21 October 1974, the applicant received a bad conduct discharge
under the provisions of chapter 11 of Army Regulation 635-200 (Personnel
Separations) by reason of court-martial.  He had completed 2 years, 1
month, and 28 days of creditable active military service with 70 days of
lost time due to confinement.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 15 March 1985, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB determined that the applicant's
discharge was proper and equitable and that the discharge was properly
characterized as a bad conduct discharge.

11.  Army Regulation 635-200, paragraph 11-2, provides that an enlisted
person will be given a bad conduct discharge pursuant only to an approved
sentence of a general or special court-martial, after completion of
appellate review and after such affirmed sentence has been ordered duly
executed.

12.  In accordance with Title 10 of the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be
upgraded so that he may receive medical and education benefits.  However,
the ABCMR does not correct records solely for the purpose of obtaining
eligibility for benefits.
2.  By law, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial.  The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.

3.  The applicant's entire record of service was considered in this case.
However, given the seriousness of the offense for which he was convicted
and his military record, it is determined that his service was not
sufficiently meritorious to warrant clemency in this case.



4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 March 1985, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 14 March 1988.  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

__KLM __  __DEB__  __ QAS  _  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.




                                  ____ Mr. Kenneth L. Wright __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005730                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |10 January 2006                         |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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