RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060002490


      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 B. Gunlicks             |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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), characterized as under other than honorable conditions (UOTHC), on
his last DD Form 214, be upgraded to honorable.

2.  The applicant states, in effect, that it has been well over 30 years
ago, with timed served; that he was young and immature; and that he is
currently 58 years old.  He has now learned and corrected his mistakes.  He
has been employed for the last 30 years; however, not at the present
because of Hurricane Katrina.  He has not been in any type of trouble since
those 30 years.  He is currently a minister and has grown closer to the
Lord within those years.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 November 1972, the date of his discharge.  The application
submitted in this case is dated 31 January 2006 but was received for
processing on 15 February 2006.

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 he enlisted in the Regular Army on 26 June
1968, at the age of 19 years, 8 months, and 2 days.  The applicant
successfully completed basic combat training and advanced individual
training at Fort Polk, Louisiana.  On completion of his advanced training,
he was awarded the military occupational specialty (MOS), 11B, Light
Weapons Infantryman.  He continued to serve until he was honorably
discharged on 19 July 1969, in order to immediately reenlist.




4.  The applicant reenlisted on 20 July 1969, as a wheel vehicle mechanic.
He served in Vietnam from 7 January 1969 to 4 December 1969.  He continued
to serve until he was honorably discharged on 5 January 1971, in order to
immediately reenlist.  He reenlisted on 6 January 1971.  He served in
Vietnam from 13 March 1971 to 22 July 1971.

5.  Between 7 April 1970 and 8 March 1971, the applicant received
nonjudicial punishment on three occasions under Article 15, Uniform Code of
Military Justice (UCMJ), for destroying government property, failing to go
to his appointed place of duty, and for being absent without leave (AWOL)
from 25 February to 5 March 1971.  His punishments consisted of a reduction
to pay grade E-2, forfeitures of pay, and restriction and extra duties.

6.  At a general court-martial on 23 September 1971, while serving in
Vietnam, the applicant pled not guilty to the charge and its specification
that on or about 2130 hours, on 21 July 1971, with "intent to commit
murder”, he committed an assault on another Soldier by stabbing him in the
chest with a knife.  He was found guilty of the specification of the
charge, except the words, "with intent to commit murder”, and adding after
the word "knife" the words, "and did thereby intentionally inflict grievous
bodily harm upon him, to wit: a penetrating stab wound of the chest."  Of
the excepted words he was “not guilty”, of the added words, "guilty."  He
was not guilty of the charge under Article 134 but guilty of a violation of
Article 128.  His sentence consisted of confinement, at hard labor, for one
year and a BCD.  The sentence was approved on 18 December 1971.  The record
of trial was forwarded to The Judge Advocate General (TJAG) of the Army for
review by a Court of Military Review (CMR).  Pending completion of the
appellate review, the applicant was confined in the United States
Disciplinary Barracks, Fort Leavenworth, Kansas.

7.  The applicant was restored to duty effective 5 July 1972, pending
completion of his appellate review.

8.  On 11 September 1972, the United States Army CMR (ACMR) affirmed only a
finding of assault by cutting the victim in the chest with a dangerous
weapon and affirmed the sentence as adjudged.

9.  The portion of the sentence pertaining to confinement having been
served and the provisions of Article 71(c) having been complied with, on
14 November 1972, the general court-martial convening authority directed
the sentence to be duly executed.


10.  On 16 November 1972, the applicant was discharged from the Army
pursuant to the sentence of a general court-martial and was issued a BCD,
although his DD Form 214 characterizes his service as UOTHC.  He had
completed 3 years, 4 months, and 24 days of creditable service and had
355 days of lost time due to AWOL and confinement. 

11.  The applicant’s case is ineligible for review  by  the  Army  Discharge
Review Board (ADRB) due to his conviction by a general court-martial.

12.  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.

13.  Army Regulation 635-200, paragraph 3-7b, 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.

14.  Army Regulation 635-200, paragraph 3-7a, 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, 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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offense
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
general court-martial for assault upon another Soldier, cutting him in the
chest with a dangerous weapon.  He was discharged pursuant to the sentence
of a general 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.  The applicant contends that he was young and immature.  He was
19 years, 8 months, and 2 days old at the time of his enlistment; was
21 years, 5 months, and 14 days old on the date he received his first
Article 15, under the UCMJ; was 22 years, 8 months, and 27 days old on the
date he committed an assault upon another Soldier; and was 22 years and
11 months old on the date his court-martial was adjudged.  The applicant's
youth is not an excuse in this case.  There is no evidence that the
applicant was any less mature than other Soldiers of the same or of a
younger age who served successfully and completed their terms of service.

5.  The applicant's additional contentions were considered; however, they
were not sufficiently mitigating to warrant an upgrade of his discharge to
honorable.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 November 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 November 1975.  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

__JBG__  __EM ___  _SWF___  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 B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002490                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19721116                                |
|DISCHARGE AUTHORITY     |AR 635-200, chap 11                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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