RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           23 June 2005
      DOCKET NUMBER:  AR20040007626


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert L. Duecaster           |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he apologizes for the behavior he
displayed that led to his discharge.  He states that he was afraid of the
surgery treatment he had to undergo and frightened because a roommate had
the wrong leg amputated.  He further states that he was under a lot of
stress due to family problems at home, and his only concern at the time was
to get home.  He states that he went absent without leave (AWOL) to run
away from his problems.  He also claims that he was verbally abused by
doctors treating him for bullet fragments behind his left eye at Walter
Reed Army Hospital (WRAH), Washington D.C.

3.  The applicant further states he is now a changed person and has matured
a lot since he was 18 years of age, when he was immature and irresponsible.
 He states that he is now a contributing member of his community and is
helping the special need population.  He claims that he has turned his life
around and if he could turn back the hands of time, he knows his choices
would be different.  He also indicates that he now suffers from many
medical problems that include a seizure disorder, memory loss, blindness in
the left eye, hepatitis C, depression and anxiety, amputation of his left
thumb and “AMV” of the brain.

4.  The applicant provides medical documents outlining his current
conditions in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 July 1977.  The application submitted in this case is
dated
2 September 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’s record shows he enlisted in the Regular Army and
entered active duty on 2 August 1976.  He was trained in, awarded and
served in military occupational specialty 51B (Carpentry and Masonry
Specialist), and the highest rank he attained while serving on active duty
was private/E-2 (PV2).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on
6 November 1976, for stealing property at the Post Exchange.

5.  The applicant was convicted of rape in the State District Court,
Frankfurt, Germany, and sentenced to 21 months of juvenile confinement,
which was suspended.

6.  On 29 December 1978, the unit commander notified the applicant of his
intent to recommend the applicant’s discharge under the provisions of
chapter 14,
Army Regulation 635-200, based on conviction of rape by a civil court.

7.  On 1 February 1979, the applicant consulted legal counsel and after
being advised of the basis for the contemplated separation, the effects of
an UOTHC discharge, and of the rights available to him, the applicant
requested his case be considered by a board of officers.

8.  On 9 May 1979, a board of officers convened to consider the applicant’s
case. After carefully considering the evidence before it, the board of
officers found that the applicant was undesirable for retention in the
military service because of his civil conviction of a discreditable nature
with civil authorities and because of his lack of promotion potential.  The
board of officers recommended that the applicant be discharged because of
misconduct and that he receive an UOTHC discharge.

9.  On 18 June 1979, the separation authority approved the recommendation
of the board of officers and directed that the applicant be discharged
UOTHC.  On 17 July 1979, the applicant was discharged accordingly.

10.  The separation document (DD Form 214) issued to the applicant upon his
separation shows that he completed a total of 2 years, 11 months and 16
days of creditable active military service.

11.  The applicant’s record is void of any information regarding the AWOL
and medical issues the applicant discusses in his statement.  The applicant
provides several medical documents that all outline medical conditions he
has incurred since his discharge.

12.  On 31 January 1983, the Army Discharge Review Board (ADRB), after
carefully considering the applicant’s case, concluded that his discharge
was proper and equitable, and it voted to deny his request to upgrade his
discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  An UOTHC discharge is normally
considered appropriate for members separated under these provisions.

14.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the Army Board for Correction of
Military Records (ABCMR) should commence on the date of final action by the
ADRB.  In complying with this decision, the ABCMR has adopted the broader
policy of calculating the 3-year time limit from the date of exhaustion in
any case where a lower level administrative remedy is utilized.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his youth and immaturity impaired his
ability to serve was carefully considered.  However, the record confirms he
successfully completed training and more than two years of service prior to
committing the offense that led to his discharge.  As a result, it appears
he had the ability to successfully serve.

2.  The applicant’s contentions that he has been a good citizen and
contributing member of his community; and that he now suffers from serious
medical problems were also carefully considered.  However, while his post
service conduct is admirable, and his medical problems are unfortunate,
these factors are not sufficiently mitigating to warrant an upgrade of his
discharge.

3.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the governing regulation, to include
consideration of his case by a board of officers.  All requirements of law
and regulation were met and the rights of the applicant were fully
protected throughout the separation process.

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 31 January 1983, the date the ADRB
last reviewed his case.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 30 January 1986.  However,
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

___RLD _  ___TAP _  __MJF __  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.




            ____Robert L. Duecaster__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007626                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/06/23                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/07/17                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Civil Conviction                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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