RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050016944


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan Powers                  |     |Chairperson          |
|     |Mr. David Haasenritter            |     |Member               |
|     |Mr. Jonathan Rost                 |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that he received an honorable discharge from the
Army National Guard, so how could he have a Bad Conduct discharge and an
honorable discharge.  He is living a lawful lifestyle and wants to be
employable but can't because of his discharge.

3.  The applicant provides copies of his May 1977 and September 1980
discharge certificates in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 September 1980.  The application submitted in this
case is dated 31 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 initially enlisted in the Army National Guard on 10 May
1976, and entered active duty for training (ADT) on 26 December 1976.  He
was honorably released from ADT on 21 May 1977.

4.  The applicant enlisted in the Regular Army on 16 January 1979, for a
period of 4 years.

5.  On 1 August 1979, he was convicted by a summary court-martial, contrary
to his pleas, of four specifications of unlawfully entering the room of
four other Soldiers with the intent to commit a criminal offense, larceny,
and five specifications of stealing property belonging to five other
Soldiers.  He was sentenced to confinement at hard labor for 21 days and
reduction to Private, E-1.


6.  On 17 January 1980, he was convicted pursuant to his pleas by a special
court-martial of five specifications of stealing money belonging to another
Soldier from the Fort Devens Federal Credit Union totaling $1,624.00.  He
was sentenced to a forfeiture of pay of $299.00 per month for 3 months,
confinement at hard labor for 3 months, and to be discharged from the
service with a bad conduct discharge.

7.  The findings and sentence were approved on 3 March 1980, and affirmed
by the United States Army Court of Military Review on 17 April 1980.

8.  Special Court-Martial Order Number 226, Headquarters, United States
Disciplinary Barracks, Fort Leavenworth, Kansas, dated 15 August 1980,
directed the execution of the bad conduct discharge.

9.  On 19 September 1980, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 3, paragraph 3-11, as a result of court-
martial, with a bad conduct discharge.

10.  Title 10, 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.

11.  The applicant was discharged on 19 September 1980, under the provision
of Army Regulation 635-200, Chapter 11, with a bad conduct discharge.  His
DD Form 214 (Certificate of Release or Discharge from Active Duty)
indicates he had 1 year, 5 months, and 1 day of active service and 251 days
of lost time.

12.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 11, paragraph
11-2, provided that a bad conduct discharge will be issued pursuant to an
approved sentence of a general or special court-martial, after completion
of the appellate review, and the sentence has been affirmed and ordered
duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.
3.  The applicant’s contention that he is living a lawful lifestyle, which
was not supported by any evidence, would not serve as a basis to warrant
the relief requested.

4.  The applicant was released from a period of ADT on 21 May 1977 with an
honorable discharge.  This characterization described his service for the
period preceding his release from ADT.  The applicant later enlisted in the
Regular Army.  During that enlistment, the applicant was court-martialed
and received a bad conduct discharge.  The characterization of his prior
service as honorable had no relation to his later service in the Regular
Army that was terminated because of his criminal offense.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 September 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
18 September 1983.  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

___SP __  ___DH   _  ___JR___  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.



                                  ______Susan Powers________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050016944                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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