RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20050015038


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. James R. Hastie               |     |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 (BCD),
characterized as under other than honorable conditions (UOTHC), be upgraded
to honorable.

2.  The applicant states, in effect, that his discharge, characterized as
UOTHC, should be upgrade to honorable.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty), a copy of his court-martial order, a copy of his Article
15, under the Uniform Code of Military Justice (UCMJ), in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 March 1978, the date of his discharge.  The application
submitted in this case is dated 10 October 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 military records show he entered active duty on 16 July
1974, as a unit supply specialist (76Y).  He was advanced to pay grade E-4
on 10 March 1976.

4.  On 2 May 1975, the applicant was punished under Article 15, UCMJ, for
failure to go to his appointed place of duty.  His punishment consisted of
a forfeiture of pay and 14 days extra duty.

5.  At a special court-martial on 20 December 1976, the applicant pled not
guilty to a specification of AWOL (absent without leave), three
specifications of willfully disobeying a lawful order from a superior
commissioned officer, a specification of willfully disobeying a lawful
order from a superior noncommissioned officer, a specification of striking
his superior noncommissioned officer, and a specification of disrespect to
a superior commissioned officer.  He was found guilty of all charges.  He
was sentenced to confinement at hard labor for 2 months, a forfeiture of
$249.00 pay per month for two months, and to be discharged with a BCD.  The
sentence was adjudged on 20 December 1976 and approved on 4 March 1977.
The record of trial was then forwarded to The Judge Advocate General (TJAG)
of the Army for review by a Court of Military Review (CMR).

6.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification
Record-Part ll), shows that he was AWOL from 15 July through 4 August
1976 (20 days) and confined from 20 December 1976 through 8 February
1977 (51 days).

7.  On 10 February 1978, the United States Court of Military Appeals denied
his petition for grant of review of his case.

8.  On 23 February 1978, Headquarters, 101st Airborne Division (Air
Assault) and Fort Campbell, set aside and dismissed the findings of guilty
of Charge II and its three specifications pursuant to Article 66 of the
UCMJ.  Only so much of the sentence as provided for confinement at hard
labor for 2 months, forfeiture of $249.00 pay per month for 2 months and
the bad conduct discharge were affirmed.  The provisions of Article 71(c)
having been complied with, the sentence was ordered executed.

9.  On 3 March 1978, the applicant was discharged from the Army pursuant to
the sentence of the special court-martial and was issued a BCD.  He had
completed 3 years, 5 months, and 3 days of creditable service.

10.  On 28 July 1981, the Army Discharge Review Board denied the
applicant's petition for an upgrade of his BCD.

11.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 11-1(b) of
the regulation provided, in pertinent part, that an enlisted person would
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 affirmation of the sentence imposed.

12.  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.

13.  Army Regulation 635-200, 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.

14.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.
Conviction and discharge were effected in accordance with applicable law
and regulation.

2.  The evidence of record shows that the applicant was convicted by a
special court-martial for numerous offenses and AWOL.  He was discharged
pursuant to sentence of a special court-martial and was issued a BCD.

3.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

4.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise 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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 28 July 1981.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 27 July 1984.  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

___D____  ___A____  _JRH___  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                 |AR20050015038                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060808                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19780303                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 11                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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