RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060009051


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Mr. David W. Tucker               |     |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, upgrade of his bad conduct discharge
to a general discharge.

2.  The applicant states, in effect, that the Army is less likely now to
punish individuals going through a divorce.  He also stated that he was not
absent without leave (AWOL) for the number of days stated.  He was going
through a very painful divorce at the time and has since turned his life
around.  He was very young going through this divorce and help was not
available.  He has to overcome the past and today uses that experience to
help others.

3.  The applicant provides copies of his 1974 and 1977 Certificates of
Military Service; his Master of Arts Degree; a letter of recommendation
from the Director, Dekalb Court Services Program, Atlanta, Georgia; his New
Clinical Evaluator and Treatment Provider Training for the Multiple
Offender Driving Under the Influence Program, completion certificate; his
Certified Addiction Counselor – Level II, completion certificate; four
character reference letters; his Substance Abuse Professional,
certification; his National Certified Counselor certification; National
Addiction Certified Counselor II, certification; his Creating a Process of
Change for Men who Batter, completion certificate; his national and state
professional counselor's license; in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 May 1981.  The application submitted in this case is
dated 15 June 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 military records show that he enlisted in the Regular
Army (RA), in pay grade E-1, on 24 January 1972.  He served in Okinawa from
July 1972 to January 1974.  He was honorably discharged from active duty by
reason of early return from overseas, in pay grade E-4, on 14 January 1974.
4.  The applicant reenlisted in the RA, in pay grade E-4, on 12 November
1974, for 3 years.  He completed basic and advanced training and was
awarded military occupational specialty 36K, field wireman.  He was
promoted to pay grade E-5 on 10 July 1977.

5.  The applicant was honorably discharged on 13 August 1977 for the
purposes of immediate reenlistment.  He reenlisted on 14 August 1977 for 3
years.

6.  On 8 May 1979, the applicant was convicted by special court-martial of
going from his appointed place of duty without authority and unlawfully
striking another Soldier in the face with his closed fist.  Charges of
dereliction in the performance of his duties in that he willfully failed to
enforce the policy not to have women in his barracks and being found drunk
on duty were dismissed by the military judge. The approved sentence was
reduction to pay grade E-4 (Corporal); forfeiture of $300.00 pay per month
for two months; and restriction to his unit for 60 days.

7.  On 19 June 1979, the applicant was punished under Article 15, Uniform
Code of Military Justice, for failing to go at the time prescribed to his
place of duty.  His punishment included reduction to pay grade E-3,
suspended for 90 days; placement in the Correctional Custody Facility for 7
days, suspended for 90 days; and forfeiture of $124.00 for one month.

8.  The applicant was reported AWOL on 27 July 1979 and returned to
military control on 26 November 1979.

9.  The applicant was reported AWOL on 3 December 1979 and dropped from the
rolls.  On 10 June 1980, the applicant was confined to the United States
Disciplinary Barrack, Fort Leavenworth, Kansas.

10.  On 30 August 1980, the suspension of the punishment of reduction to
pay grade E-3 was vacated.  The unexecuted portion of the 19 June 1979
Article 15 punishment was duly executed.

11.  On 12 August 1980, the applicant was convicted by a general court-
martial of being AWOL from on or about 27 July 1979 to on or about 23
August 1979 and from 3 December 1979 to 19 February 1980, and wrongfully
having in his possession 0.637 grams, more or less, of a habit forming
narcotic drug, to wit: diacetylmorphine (heroin) and for wrongfully selling
0.687 grams of heroin on 10 May 1979.  The approved sentence was separation
from the service with a BCD, confinement at hard labor for four months,
forfeiture of $150.00 per month for four months, and reduction to pay grade
E-1.  Pending appellate review, the applicant was ordered to confinement at
the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

12.  On 28 October 1980, the United States Army Court of Military Review,
having found the approved findings of guilty and the sentence correct in
law and fact, determined on the basis of the entire record that they should
be approved, and affirmed the findings of guilty and the sentence.

13.  The applicant's records contain an unsigned copy of the Notice to the
Accused of the decision of the United States Army Court of Military Review.
 On 11 September 1980, the applicant executed a "Request for Excess Leave"
form in which he acknowledged his rights and obligations while on excess
leave.

14.  The applicant was placed in an excess leave status on 12 September
1980.

15.  On 12 March 1981, General Court-Martial Order Number 180, was issued
affirming that Article 71(c) of the UCMJ had been complied with and that
portion of the sentence pertaining to confinement had been served, and
ordered that the applicant's discharge would be duly executed.

16.  On 10 April 1981, the applicant was notified of completion of the
appellate review and that his discharge would be duly executed.

17.  Order Number 93-6, dated 13 May 1981, was issued discharging the
applicant from the Regular Army effective 15 May 1981.

18.  The applicant was discharged on 15 May 1981, in pay grade E-1, in
compliance with General Court-martial Order Number 12, Headquarters, 1st
Infantry Division (Mechanized) and Fort Riley, Kansas, dated 21 August 1980
and General Court-martial Order Number 180, Headquarters, United States
Disciplinary Barracks, Fort Leavenworth, Kansas, dated 12 March 1981.  He
was credited with 2 years, 8 months, and 10 days net active service and
lost time from 27 July 1979 to 26 November 1979, 3 December 1979 to 18
February 1980, 7 March 1980 to 14 August 1980, and 15 August 1980 to 11
September 1980.

19.  The applicant’s available records show the highest rank and pay grade
he attained while on active duty was sergeant, pay grade E-5, prior to his
reenlistment on 15 August 1977.  The record contains no documented evidence
of acts of valor warranting special recognition after his reenlistment in
1977.



20.  On 4 April 1982, the applicant applied to the Army Board for
Correction of Military Records (ABCMR) requesting recharacterization of his
bad conduct discharge.  The Board recommended the applicant's records be
corrected to show he was eligible for a complete and unconditional
separation from the military service at the time of his honorable discharge
on 14 August 1977.  The Board denied the request of recharacterization of
his bad conduct discharge.

21.  On 5 July 1983, the Deputy Assistant Secretary, Department of the Army
Review Boards and Personnel Security, Office of the Assistant Secretary,
approved the findings, conclusions, and recommendation of the ABCMR.

22.  On 29 August 1983, the applicant was informed that his record had been
corrected.  He was provided a certificate, dated 26 July 1983, showing that
he was eligible or a complete and unconditional separation from military
service at the time of his honorable discharge on 14 August 1977.  The
applicant was also advised that he could apply to the Veterans
Administration for any benefits to which he might be entitled based on his
honorable period of service.

23.  On 11 January 1985, the applicant was issued Certifications of
Military Service for his honorable service from 14 January 1972 through 13
August 1977.

24.  The applicant submits with his current applicant documentation showing
he completed a Master of Arts degree in December 2000 and was certified as
a Certified Addiction Counselor.  He also submitted several character
reference letters concerning his post service accomplishments.

25.  Title 10, United States Code, section 1552, as amended, does not
permit any redress by this Board which would disturb the finality of a
court-martial conviction.  The Board is empowered to address the punishment
and/or the characterization of service resulting from a court-martial
conviction.  The Board may elect to change the punishment and/or the
characterization of service if clemency is determined to be appropriate.
Clemency is an act of mercy, or instance of leniency, to moderate the
severity of the punishment imposed.

26.  Army Regulation 635-200, paragraph 3-7b, defines a general discharge
as 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 separation specifically allows such characterization.

27.  Army Regulation 635-200, paragraph 3-7c, defines an under other than
honorable conditions discharged.  A discharge under other than honorable
conditions is an administrative separation from the service under
conditions other than honorable.  When authorized, it is issued to a
Soldier for misconduct or in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not
entitled to an upgrade of his discharge.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterized the misconduct for which the applicant was convicted.

3.  The applicant's contention that his painful divorce impacted his
ability to serve successfully is without merit.  The evidence shows the
applicant's service was characterized by periods of AWOL, violence (hitting
another Soldier in the face with his fist), and having and selling heroin.
There is no evidence that the applicant's divorce was in any way connected
with his discharge from the service and prevented him from successfully
completing his term of service.  He has provided no evidence or argument to
show the discharge should be upgraded or that he was not AWOL for the
amount of time documented in his records.

4.  The applicant's available military records and documentation
submitted with his application contain no matters upon which the Board
may grant clemency and an upgrade of his bad conduct discharge to a
general, under honorable conditions discharge.  In view of the foregoing,
there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 May 1984.  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

___JCR__  __DWT__  __REB__  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.




                                  _____Jeffrey C. Redmann______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009051                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070118                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19810515                                |
|DISCHARGE AUTHORITY     |General Court-Martial                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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