RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 July 2007
      DOCKET NUMBER:  AR20070002873


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. james E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Mr. William F. Crain              |     |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)
be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, after he was court-martialed in
Germany, he was never treated fairly when he returned to the United States.
 He claims his sergeant major (SGM) threatened to court-martial him again
as soon as he arrived at the Army base at Fort Carson, Colorado.  He states
that when he tried to collect his payroll check, he was told by the SGM
that he did not have a check and was no longer in the Army.  As a result,
he left and after the FBI notified his father that the Army was looking for
him and that he was absent without leave (AWOL), he turned himself in and
was sent back to Fort Riley, Kansas, where he was discharged.  He felt he
was a good Soldier and was never given the opportunity to demonstrate that.


3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 April 1977, the date of his discharge.  The application
submitted in this case is dated 15 January 2007.

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 that he enlisted in the Regular Army and
entered active duty on 30 September 1974.  He successfully completed basic
combat training and advanced individual training (AIT) at Fort Ord,
California.  Upon completion of AIT, he was awarded military occupational
specialty (MOS) 76Y (Supply Specialist) and assigned to Germany.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that he was advanced to private/E-2
(PV2) on 13 January 1975, and that this is the highest rank he attained
while serving on active duty.  Item 9 (Awards, Decorations & Campaigns)
shows that during his active duty tenure, he received the Marksman
Marksmanship Qualification Badge with Rifle Bar.  His record documents no
acts of valor, significant achievement, or service warranting special
recognition.

5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on three separate occasions, and two
separate Special Court-Martial (SPCM) convictions.

6.  On 1 May 1975, while serving in Germany, a SPCM found the applicant
guilty of violating Article 128 of the UCMJ by assaulting another Soldier
on or about
27 March 1975.  The resultant sentence was a reduction to private/E-1
(PV1), confinement at hard labor for 3 months, and a forfeiture of $229.00
per month for 3 months (portion suspended).

7.  On 10 December 1975, while serving at Fort Carson, Colorado, the
applicant accepted NJP for absenting himself from his place of duty at
which he was required to be on or about 2 December 1975; and for failing to
go to his appointed place of duty at the prescribed time on or about 4
December 1975.  His punishment for these offenses was forfeiture of $50.00,
7 days restriction (suspended), and 14 days extra duty.

8.  On 8 March 1976, while serving at Fort Carson, the applicant accepted
NJP for failing to go to his appointed place of duty at the prescribed time
on or about 27 February 1976; and for leaving his appointed place of duty
without authority on or about 3 March 1976.  His punishment for these
offenses was reduction to PV1, forfeiture of $84.00, and 14 days of extra
duty.

9.  On 18 June 1976, while serving at Fort Carson, the applicant accepted
NJP for committing assault upon a private by striking him in the body with
a means of force likely to produce grievous bodily harm.  His punishment
for this offense was reduction to PV1, forfeiture of $100.00 per month for
2 months, (1 month suspended), and 30 days of extra duty.

10.  On 3 August 1976, a SPCM found the applicant guilty, contrary to his
pleas, of violating the following articles of the UCMJ by committing the
offenses indicated: Article 89, by behaving himself with disrespect toward
a first lieutenant, his superior commissioned officer; Article 91, by being
disrespectful in language toward a staff sergeant, his superior
noncommissioned officer (NCO); Article 86, by failing to go to his
appointed place of duty at the time prescribed on or about 25 May 1976; and
Article 92, by failing to obey a lawful order issued by a first sergeant on
or about 25 May 1976.  The resulting approved sentence was a BCD.

11.  On 27 December 1976, the United States Army Court of Military Review,
found the findings of guilty on the applicant and sentence approved by
proper authority correct in law and fact, and having determined, on the
basis of the entire record, that they should be approved, such findings of
guilty and sentence were affirmed.

12.  On 31 March 1977, SPCM Orders Number 20, issued by Headquarters, XVIII
Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, directed,
Article 71(c) of the UCMJ having been complied with, that the BCD portion
of the applicant’s approved sentence be duly executed.

13.  On 13 April 1977, the applicant was separated with a BCD after
completing a total of 2 years and 8 days of creditable active military
service and accruing
186 days of time lost due to AWOL.

14.  There is no indication that the applicant petitioned the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within that
board's 15-year statute of limitations.

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

16.  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 contention that his discharge was unjust because he was
treated unfairly by a SGM and was generally a good Soldier was carefully
considered.  However, there is insufficient evidence to support these
claims.

2.  By law, any redress by this Board of the finality of a court-martial
conviction, after 1949 under the UCMJ, 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.

3.  The evidence of record confirms that in addition to the court-martial
that resulted in the applicant's BCD, he also had accrued an extensive
disciplinary record that included his acceptance of NJP on three separate
occasions and one other SPCM conviction.  His record documents no acts of
valor, significant achievement, or service warranting special recognition.
Given his undistinguished record of service and the severity of the
offenses for which he was convicted, there is an insufficient evidentiary
basis to support clemency in this case.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 April 1977, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 12 April 1980.  He failed to 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

___JEA__  __JAM __  __WFC__  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 E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002873                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/12                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1977/04/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |BCD                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]