RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 February 2007
      DOCKET NUMBER:  AR20060010025


      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. Judy L. Blanchard             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Marla J.N.Troup               |     |Chairperson          |
|     |Mr. John G. Heck                  |     |Member               |
|     |Mr. Donald L. Lewy                |     |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, an upgrade of his Bad Conduct
Discharge (BCD).

2.  The applicant states, in effect, that he believes that at the time of
his court-martial, he should have received restoration because of his
military record.  He further states, that he was a good Soldier who
deserves another chance to serve his country.

3.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 10 October 1980, the date he was discharged from active
duty.  The application submitted in this case is dated 20 May 2006;
however, it was received on 18 July 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.  On 26 January 1976, the applicant enlisted in the Regular Army for a
period of 3 years.  He completed the required training and was awarded
military occupational specialty (MOS) 91B (Medical Specialist).  The
highest grade he attained was pay grade E-4.

4.  On 17 July 1978, the applicant accepted nonjudicial punishment (NJP)
for the wrongful appropriation of a 1/4 ton truck of a value of about
$6,641.000, the property of the United States government and for being
absent without leave (AWOL) from 21 to 22 June 1978.  His imposed
punishment was a reduction to pay grade E-2, 45 days restriction, and a
forfeiture of $221.00 pay per month for
2 months.



5.  On 4 December 1978, the applicant accepted NJP for being AWOL from
29 September to 9 October 1978.  His imposed punishment was a reduction to
pay grade E-3, a forfeiture of $250.00 pay, 30 days restriction, and 30
days extra duty.

6.  On 22 June 1979, the applicant pled guilty before a military judge at a
General Court-Marital convened by U.S Army 757th Medical Detachment, APO
New York, 09281, of two specifications of the wrongful possession of
Heroin, one specification of the wrongful distribution of 0.9 grams more or
less of Heroin, for one specifications of having in his possession two
plastic hypodermic syringes with needles, and for two specifications of
being AWOL from 13 December 1978 to 19 March 1979 and from 20 to 28 March
1979.  He was sentenced to a Dishonorable Discharge; to forfeit all pay and
allowances, confinement for a period of 6 years and a reduction to pay
grade E-1.

7.  On 17 September 1979, the convening authority approved, only so much of
the sentence as it provides for a Bad Conduct Discharge, confinement at
hard labor for 20 months, a forfeiture of all pay and allowances, and a
reduction to the lowest enlisted grade.  The record of trial was forwarded
to The Judge Advocate General of the Army for review by a Court of Military
Review.  Pending completion of appellate review the applicant was confined
in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.

8.  On 6 May 1980, the appropriate post-trial review were affirmed, the
sentence and the finding of guilty were ordered duly executed.  There is no
evidence that the applicant petitioned the United States Court of Military
Appeals for a grant of review.

9.  On 10 October 1980, the applicant was discharged under the provisions
Army regulation 635-200, Para 11-2, as a result of a court-martial with a
BCD.  He had completed 2 years, 10 months and 23 days of creditable active
military service.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Para 11-2, in effect at the time,
provided the policies and procedures for separating members with a
dishonorable or bad conduct discharge.  It stipulated that a Soldier would
be given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial and that the appellate review must be
completed and the affirmed sentence ordered duly executed.


11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be
insufficient in supporting the requested relief.

2.  The evidence of record confirms the applicant’s trial by court-martial
was warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
and regulations and his rights were protected throughout the court-martial
process.  There is no evidence in the applicant’s record nor has he
presented any evidence to warrant the requested relief.

3.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that based on the seriousness of the
offenses for which he was convicted, clemency would not be appropriate in
this case.

4.  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.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 October 1980.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 9 October 1983. However, he 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

__MJNT__  __JGH__  ___DLL__  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.





                                  ____  Marla J.N.Troup____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/02/21                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR. CHUN                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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