RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 April 2005
      DOCKET NUMBER:  AR20040007877


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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 under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect, that his company commander wanted him
to lie about events that led up to the death of a Soldier assigned in his
platoon.  He continued that his commander tried to make things hard for him
and his platoon by putting them down.  That started to affect the morale of
his platoon.

3.  The applicant further states his wife was having an affair with another
man and when his commander found out he really started to put pressure on
him.  He states that one night while in the field his commander put his
hands on one of his Soldiers which led to a fight between him and his
commander.

4.  The applicant states after the fight he was put in for a court-martial
and was told he was going to be barred from reenlistment.  He stated that
his lawyer told him that a chapter 10 discharge was being offered to him
under honorable conditions so he signed it.  He later found out that the
discharge was under other than honorable conditions and when he went to his
lawyer to find out what was going on he was told it was too late because
the discharge proceedings were being processed.  He concluded that his
lawyer was working against him and never meant to help him.

5.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 August 1989.  The application submitted in this case is
dated 8 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 30 June 1975 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 11B (Infantryman).  On 16
November 1987, he reenlisted for a two year term of service in the pay
grade/E-6 at Fort Ord, California

4.  A CID Form 28 (Agent Activity Summary) shows that on 3 May 1989 the
applicant was apprehended and questioned as a suspect for withdrawing money
from the credit union account of a fellow Soldier.

5.  A DD Form 458 (Charge Sheet), dated 1 June 1989, shows charges were
preferred against the applicant for three specifications of attempting to
steal from a Fort Ord Federal Credit Union (FOFCU) account, one
specification each for stealing a wallet and stealing $1,150.00 from a
FOFCU account, and seven specifications of failing to pay back personal
loans obtained from fellow Soldiers (six Soldiers of a lower rank).

6.  On 2 June 1989, an investigating officer was designated to conduct an
investigation of charges brought against the applicant.  A DD Form 457
(Investigating Officer's Report) shows that the investigation began on 12
June 1989.

7.  On 15 June 1989, the results of the Investigating Officer's Report
revealed that the applicant had withdrawn money from a fellow Soldier's
FOFCU account and had not paid back loans from fellow Soldiers.  The
investigating officer that conducted the investigation recommended that the
applicant's case be referred to a general court-martial for trial.

8.  On 21 July 1989, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).  The
applicant indicated in his request that he understood he could be
discharged under other than honorable conditions; that he may be deprived
of many or all Army benefits; that he may be ineligible for many or all
benefits administered by the Department of Veterans Affairs; 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.  He did not submit a statement in his
behalf.



9.  On 25 July 1989, the appropriate authority approved the applicant's
request for discharge for the good of the service - in lieu of court-
martial under the provisions of chapter 10 of Army Regulation 635-200.  On
10 August 1989, he was discharged with an under other than honorable
conditions discharge.  He completed 1 year, 8 months, and 25 days of
creditable active service of a 2-year enlistment with no days of lost time.


10.  On 5 February 1997, the Army Discharge Review Board (ADRB) considered
the applicant’s request to upgrade his discharge.  The ADRB unanimously
determined that the reason and characterization of his discharge was proper
as under other than honorable conditions.

11.  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.
The request may be submitted at any time after charges have been preferred
and must include the individual's admission of guilt. An under other than
honorable conditions discharge is normally considered appropriate.

12.  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.

13.  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 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.  There is no evidence in the applicant's service records and the
applicant has provided no evidence that supports his contention that his
commander made things hard for him in his company.  Records show that his
counsel properly advised him and that he fully understood the consequences
of the discharge that he requested and that he elected not to submit a
statement in his behalf.

2.  The evidence of record confirms that the applicant was charged with the
commission of offenses punishable under the Uniform Code of Military
Justice that carried a punitive discharge.  After consulting with defense
counsel, the applicant voluntarily requested discharge from the Army in
lieu of trial by court-martial.  In doing so, he admitted guilt to the
offense charged.

3.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and that the rights of the applicant were
fully protected throughout the separation process.  Therefore, it is
concluded that the applicant’s discharge was proper and equitable.  As a
result, his discharge accurately reflects his overall record of service.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 February 1997, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 4 February 2000.  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

__JI____  __REB __  __ PBF __  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.




                                  ____ John Infante ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007877                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |28 April 2005                           |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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