RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         10 January 2006
      DOCKET NUMBER:  AR20050005998


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawly 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 his bad conduct discharge (BCD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he was told at the time of his
separation, that he would receive a discharge under honorable conditions.
He further states that he is now very disabled and would like for his
separation document to indicate he was honorably discharged.

3.  The applicant provides a 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 31 December 1964.  The application submitted in this case
is dated
11 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’s record shows that he enlisted in the Regular Army and
entered active duty on 16 March 1964.  His record documents no acts of
valor, significant achievement, or service warranting special recognition.


4.  On 14 August 1964, a general court-martial (GCM) convicted the
applicant, pursuant to his plea, of violating Article 90 of the Uniform
Code of Military Justice (UCMJ) by willfully disobeying the lawful command
of a superior commissioned officer.  The resultant sentence included a bad
conduct (BCD) discharge, forfeiture of all pay and allowances, confinement
at hard labor for twelve months, and reduction to the grade of Private/E-1
(PV1).
5.  On 3 September 1964, the convening authority approved only so much of
the sentence as provided for a BCD, forfeiture of all pay and allowances,
and confinement at hard labor for six months.

6.  On 16 October 1964, the United States Army Judiciary, Board of Review,
upon consideration of the entire record held that the findings of guilty
and the sentence as approved by the convening authority were correct in law
and fact.  Accordingly, the guilty finding and the sentence were affirmed.

7.  On 14 December 1964, GCM Order Number 974, issued by Headquarters, Fort
Leavenworth, Kansas, directed that the BCD portion of the applicant’s
sentence be executed based on the guilty findings and sentence having been
finally affirmed.  On 31 December 1964, the applicant was discharged
accordingly.

8.  The DD Form 214 issued to the applicant on the date of his separation,
31 December 1964, shows he received a BCD under the provisions of Army
Regulation 635-204, by reason of court-martial (other than desertion).  It
also shows that at the time of his separation, he held the rank of PV1, and
he had completed a total of 3 months and 19 days of creditable active duty
service and had accrued 180 days of time lost due to confinement.

9.  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

10.  Army Regulation 635-204 set forth the basic authority for the
separation of enlisted personnel.  The policy in effect at the time,
established the separation of members with a dishonorable or bad conduct
discharge pursuant to an approved sentence of a general court-martial
imposing a dishonorable or a bad conduct discharge.  It stated that an
enlisted person will be discharged with a bad-conduct discharge pursuant
only to an approved sentence of a general or special court-martial imposing
a bad-conduct discharge and  would be accomplished only after the
completion of the appellate process, and affirmation of the court-martial
findings and sentence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was told his discharge would be
under honorable conditions was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant’s conviction and
discharge were effected in accordance with applicable law and regulations
in effect at the time, and that his trial by court-martial was warranted by
the gravity of the offense with which he was charged.

3.  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.  In this case, the applicant has failed
to provide sufficiently mitigating factors that would support granting
clemency at this late date.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 December 1964.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
30 December 1967.  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

___KLW_  __DED__  __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.




                                  _____Kenneth L. Wright_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005998                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/01/10                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1964/12/31                              |
|DISCHARGE AUTHORITY     |AR635-204 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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