RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050005774


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 his 1973 conviction by a
special court-marital be set aside.

2.  The applicant states he is about to retire from the U. S. Postal
Service and would like to teach school.  He was given an honorable
discharge and promoted to E-4 in less than 18 months.  However, the
conviction has stopped him from achieving more desirable jobs.  He has a
degree in teaching.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 July 1973.  The application submitted in this case is
dated         22 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.  The applicant enlisted in the Regular Army on 4 June 1971 for 2 years.
He completed basic combat training and advanced individual training and was
awarded military occupational specialty 71H (Personnel Specialist).

4.  On 30 July 1971, the applicant was convicted by a summary court-martial
of failing to obey a lawful order to stand at ease and be quiet.  His
approved sentence was confinement at hard labor for 1 month (suspended for
1 month) and forfeiture of $88.00 pay per month for 1 month.

5.  On 4 May 1972, the applicant was convicted, pursuant to his pleas, by a
special court-martial of one specification of wrongfully possessing one
ounce, more or less, of marijuana and two specifications of wrongfully
selling marijuana.
His approved sentence was a bad conduct discharge (suspended for 6 months),
confinement at hard labor for 129 days, a forfeiture of $100.00 pay per
month for a like period, and to be reduced to the lowest enlisted grade.

6.  Effective 23 June 1972, the unexecuted portion of the applicant's
sentence to confinement at hard labor for 129 days and forfeiture of
$100.00 pay for a like period was suspended until 30 November 1972, at
which time, unless the suspension was sooner vacated, the unexecuted
portion would be remitted without further action.

7.  On 6 September 1972, the unexecuted portion of the applicant's sentence
to confinement at hard labor for 129 days, forfeiture of $100.00 pay for a
like period, and reduction to the lowest enlisted grade was remitted.

8.  The applicant was promoted to Specialist Four, E-4 on 30 May 1973.

9.  On 19 July 1973, the applicant was honorably released from active duty
upon the completion of his adjusted expiration term of service.  He had
completed        2 years of creditable active service and had 46 days of
lost time (confinement).

10.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, the Board's action may extend only to action on the
sentence of a court-martial for purposes of clemency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's separation under fully honorable conditions and his
subsequent good post-service conduct have been considered.  However, the
Board may act on the sentence of a court-martial only for the purposes of
clemency.  For example, had the applicant's sentence to a bad conduct
discharge actually been executed, the Board could have upgraded that
discharge.  The Board is not empowered to set aside a court-martial
conviction.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 July 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          18 July 1976.  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

__jch___  __reb___  __jrm___  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 C. Hise______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005774                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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