RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 February 2005
      DOCKET NUMBER:  AR20040000400


      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. Rosa Chandler                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Maribeth Love                 |     |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 general discharge (GD) under honorable
conditions be upgraded to that of a fully honorable discharge.

2.  The applicant states, in effect, that he served in Vietnam 1 year and
he would have continued to serve in the Army had it not been for the
incident that occurred.  He requested separation under the provisions of
chapter 10 because he believed it was the right thing to do.  He did not
realize the impact a GD would have on his life.

3.  The applicant provides in support of his request DD Forms 214 (Armed
Forces of the United States Report of Transfer or Discharge) issued on
9 February 1971 and 30 November 1972.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 November 1972.  The application submitted in this case is
dated 1 April 2004.

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 limitation 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.  Prior to the period of service under review, the applicant served
honorably in the Regular Army (RA) from 23 December 1968 until he was
separated for reenlistment on 9 February 1971.  He served in Vietnam from
20 October 1969 to 10 October 1970.

4.  On 10 February 1971, the applicant reenlisted in the RA in his previous
military occupational specialty (MOS) 62B (Engineer Equipment Repairman),
for assignment to Europe, a reenlistment bonus, and in pay grade E-4.  In
April 1971, he was assigned to Germany.

5.  On 6 September 1972, special court-martial charges were preferred
against the applicant for raping a German citizen, stealing money from her
of a value of $30.00, and for striking her in the face with his fist on 21
June 1972.

6.  On 27 September 1972, a formal Article 32 investigation determined that
there was sufficient evidence to justify court-martial proceedings against
the applicant.  The recommendation was that a special court-martial be
convened to determine the final disposition of the charges.  During the
Article 32 investigation process, the applicant appeared with counsel and
admitted that, on 21 June 1972, he had several drinks with a female bar
owner in Friedberg, Germany.  She offered him intercourse for $20.00.  He
paid her $20.00, initiated intercourse, but felt bothered by his actions
and stopped.  He requested that she give him his money back and she
refused.  He hit her in the face, took his money, tied her up so that she
could not call the police and left the bar.

7.  The accuser did not appear for the Article 32 investigation and it was
believed that she would not appear for the court-martial.

8.  On 27 September 1972, the applicant consulted with legal counsel and
requested discharge for the good of the service in lieu of trial by court-
martial under the provisions of chapter 10, Army Regulation 635-200.  He
was advised that he could receive an under other than honorable conditions
(UOTHC) discharge.  He authenticated a statement with his signature
acknowledging that he understood the ramifications and effects of receiving
a UOTHC discharge.

9.  On 17 October 1972, the commander recommended approval of the
applicant's request with a GD.  On 18 October 1972, the battalion commander
recommended approval with a GD.  On 24 October 1972, the separation
authority approved the request and directed that the applicant be separated
with a GD.

10.  On 30 November 1972, the applicant was separated with a GD for conduct
triable by court-martial under the provisions of chapter 10, Army
Regulation
635-200.  He had completed 1 year, 9 months, and 21 days of active military
service on the enlistment under review and he had completed 3 years,
11 months and 7 days of total active military service.

11.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of that regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may
submit a request for discharge for
the good of the service in lieu of trial by court-martial.  The request
may be submitted at any time after charges have been preferred and must
include the individual’s admission of guilt.  While an honorable discharge
or GD may be issued, a UOTHC discharge is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was
administratively correct and in conformance with applicable regulations.
There is no indication that the request was made under coercion or duress.


2.  As part of the separation process, the applicant consulted with a legal
representative and acknowledged that he understood the consequence of
receiving a discharge that was other than fully honorable.

3.  The applicant’s entire record of service was taken into consideration
to include his Vietnam service and it was determined that both the reason
for discharge and the characterization of service were appropriate
considering the facts surrounding his case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 November 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
29 November 1975.  However, 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

__tdh___  ___ji___  ___ml___  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 D. Howard, Jr.
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000400                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050217                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19721130                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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