RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 May2005
      DOCKET NUMBER:  AR20040005932


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Seema E. Salter               |     |Member               |
|     |Ms. Susan A. Powers               |     |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 discharge under other than honorable
conditions be upgraded to a fully honorable discharge

2.  The applicant states that he was young and drinking in celebration of
his birthday during the problems he experienced during his military
service.  He continues that he did not realize that he had guard duty and
this led to a disagreement and fight with a noncommissioned officer.

3.  The applicant further states that he is requesting an upgrade of his
discharge in order to establish entitlement to veterans benefits.

4.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 August 1978, the date of his separation from active service.
 The application submitted in this case is dated 14 July 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 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 14 August 1978 for a
period of 3 years.  He completed basic and advanced individual training and
was awarded the military occupational specialty 68G10 (Aircraft Structural
Repairer).  The applicant was discharged on 27 August 1979 under other than
honorable conditions.

4.  The applicant's records contain a Criminal Investigative Command
(Division) (CID) Report of Investigation (ROI), dated 16 July 1979.  This
report shows that the CID investigation revealed that the applicant
threatened another Soldier by pointing a loaded M-16 Rifle and attempting
to strike the Soldier with the weapon.


5.  The CIDROI also contained a statement from a noncommissioned officer
(NCO).  The NCO stated in part, that on 12 July 1979, he was informed that
the applicant was suspected of being intoxicated.  The NCO went to the
applicant's location to speak with him and smelled alcohol.  The applicant
was subsequently relieved from duty.  The NCO was also informed that the
applicant had placed a magazine round in his rifle.  He then proceeded to
check the applicant's rifle and found that it contained ammunition.

6.  The CIDROI also contained a statement from the applicant's company
executive officer.  The executive officer stated that he questioned the
applicant about the incident of 12 July 1979.  The applicant informed him
that he had started drinking prior to his guard duty to celebrate his
birthday.  He [the applicant] also stated that he had a canteen of bourbon
and coke, but did not drink any on duty.

7.  The applicant's records contain a DD Form 458 (Charge Sheet), dated 27
July 1979.  This document shows that the applicant was charged with being
intoxicated while being posted as a sentinel, assaulting another Soldier by
striking him with an M-16A1 rifle with a round chambered, and threatening
the Soldier with bodily harm and pointing a loaded rifle at him.

8.  On 27 July 1979, the applicant's unit commander forwarded court-martial
charges for appropriate disposition and recommended a special court-martial
with the power to adjudge a bad conduct discharge.  The battalion commander
accepted the recommendation and also noted that the applicant's service
prior to the offenses had been poor.

9.  On 6 August 1979, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of
chapter 10, Army Regulation 635-200.  The applicant indicated in his
request that he understood he could be discharged under other than
honorable conditions and furnished an Under Other Than Honorable Conditions
Discharge; that he may be deprived of many or all Army benefits; that he
may be ineligible for many or all benefits administered by the VA; and that
he may be deprived of his rights and benefits as a veteran under both
Federal and State law.  He also acknowledged that he may expect to
encounter substantial prejudice in civilian life because of an Under Other
Than Honorable Conditions Discharge.

10.  On 6 August 1979, the applicant's commander recommended approval of
the applicant's request for discharge for the good of the service.  The
commander stated that he recommended that the applicant be provided an
undesirable discharge certificate due to the aggravated nature of the
offense for which he was charged.
11.  On 20 August 1979, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200.  He directed that the applicant be
discharged in the rank of private/pay grade E-1 and issued a discharge
certificate under other than honorable conditions.

12.  On 23 August 1979, the applicant underwent a mental status evaluation
by a medical officer.  The record also shows the psychiatrist considered
the applicant to be mentally responsible and able to distinguish right from
wrong and to adhere to right, and possess the mental capacity to understand
and participate in board proceedings.

13.  On 27 August 1979, the applicant was discharged with a
characterization of service as under other than honorable conditions after
completing 1 year and
13 days of active service with no lost time.

14.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

15.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

16.  Army Regulation 635-200 (Personnel Separations-Enlisted Personnel),
paragraph 3-7, provides that an honorable discharge is a separation with
honor and entitles the recipient to benefits provided by law.  The
honorable characterization is appropriate when the quality of the member’s
service generally has met the standards of acceptable conduct and
performance of duty for Army personnel (emphasis added), or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is 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 the soldier’s
separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1. The applicant contends that his discharge under other than honorable
conditions should be upgraded to a fully honorable discharge.

2.  The applicant's request for separation under provisions of chapter 10
of   Army Regulation 635-200 for the good of the service to avoid trial by
court-martial was administratively correct and in compliance with
applicable regulations.

3.  Evidence shows the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time.  Lacking evidence to
the contrary, it is determined that all requirements of law and regulations
were met and the rights of the applicant were fully protected throughout
the separation process.

4.  The applicant contends that immaturity was the cause of his behavior at
the time of his discharge.  However, records show that the applicant was 18
years old at the time his active service began and 19 years of age at the
time of his discharge.  He was aware of the standards of conduct for
Soldiers in the Army.  Therefore, his contention that he was immature at
the time of his offenses does not mitigate his indiscipline.

5.  After a review of the applicant's available record of service, it is
evident that his quality of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
he is not entitled to an honorable discharge.

6.  In order to justify a correction of a military record, the applicant
must show, or it must otherwise satisfactorily appear, that the record is
in error or unjust.  The applicant did not submit any evidence that would
satisfy this requirement.

7.  The ABCMR does not grant requests to upgrade of discharges solely for
determining the applicant's eligibility for veterans benefits.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 August 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
26 August 1982.  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

__mhm___  __ses___  __sap___  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.




                                        Melvin H. Meyer
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040005932                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050526                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19790827                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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