RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 March 2007
      DOCKET NUMBER:  AR20060010522


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas M. Ray                 |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |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 be upgraded.

2.  The applicant states others have had [discharge] upgrades, and he would
like to get his upgraded also.  He has asked for an upgrade for years and
never even got a response.

3.  The applicant provides his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 March 1971.  The application submitted in this case is dated
17 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.  The applicant enlisted in the Regular Army on 4 November 1968.  He
completed basic combat training.  He was assigned to Fort MacArthur, CA
where he performed on-the-job training in military occupational specialty
(MOS) 45A (Armament Maintenance Apprentice).  He was awarded MOS 57A (Duty
Soldier) on 28 July 1969.

4.  On 30 July 1969, the applicant accepted nonjudicial punishment for
absenting himself from his place of duty.

5.  The applicant arrived in Vietnam on or about 31 October 1969 and
performed duties as a longshoreman.

6.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was
absent without leave (AWOL) from 14 through 29 March 1970.  An USARV Form
327 (Review of the Staff Judge Advocate) indicated the applicant accepted
nonjudicial punishment for this AWOL.

7.  On 15 July 1970, the applicant was convicted, pursuant to his pleas, by
a general court-martial of 31 specifications of wrongfully and unlawfully
making checks without sufficient funds.  His approved sentence was to be
discharged with a bad conduct discharge, to forfeit all pay and allowances,
and to be confined at hard labor for one and one-half years.

8.  On 29 December 1970, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence.  The record does not
reflect action, if any, by the United States Court of Military Appeals.
However, the convening authority’s promulgating order executing the
applicant’s bad conduct discharge, dated 1 February 1971, shows that all
required post-trial reviews were conducted.

9.  A PMG(K) Form 95 (Factual Data for Restoration, Clemency and Parole
Review) dated 3 February 1971 noted the applicant had testified in part
that he had tried to borrow money from his wife and other relatives to make
the bad checks good and that he was in no particular financial difficulty
when he started writing the checks.  The form indicated that, while at the
Disciplinary Barracks, he stated he became intoxicated while in Saigon and
got involved with several other guys who also wanted to earn some money
fast.

10.  In February 1971, the Army Clemency and Parole Board remitted the
applicant’s confinement in excess of one year.

11.  On 1 March 1971, the applicant was discharged, pursuant to his
sentence    by court-martial, with a bad conduct discharge.  He had
completed 1 year,          7 months, and 26 days of creditable active
service and had 127 days of lost time and 118 days lost subsequent to his
normal expiration of term of service due to AWOL and confinement.

12.  In November 1977, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge.  By letter dated 27 March
1979, he was informed the ADRB could not change his discharge and he should
apply to the ABCMR.  His letter was returned with the notation that he had
moved and left no forwarding address.

13.  Around June 1998, the applicant wrote to the President requesting an
upgrade.  The National Personnel Records Center forwarded his letter to the
Army Review Boards Agency.  By letter dated 22 June 1998, the applicant was
again informed that the ADRB could not upgrade his discharge and he could
apply to the ABCMR.  The applicant’s envelope had indicated he was an
inmate in a detention facility.  There is no evidence to show this letter
was returned as undeliverable.
14.  In his letter to the President, the applicant stated, in part, that he
was sent to Vietnam right after he got married.  He took his wife and son
to live with his parents and his family.  About three months after he
arrived in Vietnam, he got a Dear John letter and lost his wife and son
because his Dad and two of his brothers got his wife drunk and raped her.
When she told him, he went crazy and got drunk and went AWOL and stayed
drunk by forging checks.

15.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states an honorable discharge is a separation with
honor.  The honorable characterization is appropriate when the quality of
the Soldier’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.  Where
there have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).  A Soldier will
not necessarily be denied an honorable discharge solely by reason of a
specific number of convictions by court-martial or actions under the UCMJ
Article 15.  Conviction by a general court-martial or by more than one
special court-martial does not automatically rule out the possibility of
awarding an honorable discharge.  An honorable discharge may be furnished
when disqualifying entries in the Soldier’s military record are outweighed
by subsequent honest and faithful service over a greater period of time
during the current term of service.

16.  Army Regulation 635-200 states a general discharge is a separation
from the Army under honorable conditions.  It is issued to a Soldier whose
military record is satisfactory but not sufficiently meritorious to warrant
an honorable discharge.

17.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, the Board's action may extend only to action on the
sentence of a court-martial for purposes of clemency.

DISCUSSION AND CONCLUSIONS:

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

2.  It is noted that the applicant accepted nonjudicial punishment prior to
arriving in Vietnam, albeit for a comparatively minor offense.  It is also
noted that the applicant’s explanation to the President around 1998 of why
he forged the checks did not match the explanation given to the Parole
Board in 1971.

3.  The applicant’s record of service does not warrant granting the relief
requested and there is insufficient evidence that would warrant upgrading
it as a matter of clemency.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1971; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         28 February 1974.  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

__tmr___  __jcr___  __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.




                                  __Thomas M. Ray_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010522                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070301                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |105.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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