RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        09 AUGUST 2005
      DOCKET NUMBER:  AR20040008901


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |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 records be corrected by upgrading his
discharge to general under honorable conditions.

2.  The applicant states that he made an honest mistake trying to help a
fellow Soldier.  He bought a stereo from a Soldier to help him get home,
later he sold it to another Soldier who then pawned it and found out it had
been stolen.  When he purchased the stereo he was unaware that it had been
stolen.  He fully cooperated with the Criminal Investigation Division (CID)
by giving them the name of the Soldier from whom he had purchased the
stereo.  The other Soldiers in the barracks witnessed what had happened,
but the CID did not investigate his account of what happened, and he was
not afforded counsel.  He was young and feels he should have remained in
the Army and accepted his punishment, and maybe his life would have turned
out better.

3.  The applicant states that he now has chronic liver disease from drug
and alcohol abuse.  If his discharge is upgraded, once he leaves prison he
will have something he can be proud of, and put on his job application.  He
is on the verge of obtaining his Associate Degree from Alvin Community
College, and will be
52 years old when he is released from prison.  He was a youngster, did not
know the law and was not given an attorney.

4.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
7 February 1977.  The application submitted in this case is dated 22
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.  On 12 January 1976, he enlisted in the Regular Army for a period of 3
years.  He completed basic combat training at Fort Knox, Kentucky, and
advanced individual training at Fort Polk, Louisiana.

4.  On 17 September 1976 he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ) for
committing assault upon another Soldier by striking him with a dangerous
weapon.  His punishment was reduction, extra duty, and a forfeiture of pay.

5.  On 14 October 1976, he accepted NJP under the provisions of Article 15,
UCMJ for failure to go at the time prescribed to his appointed place of
duty from 17 September to 20 September 1976, and for being absent without
leave from
21 September to 23 September 1976.  His punishment was restriction, extra
duty, and a forfeiture of pay.

6.  On 10 January 1977, his commander preferred court-martial charges
against him for unlawfully receiving a Sansui stereo amplifier, of a value
of about
$260.00, the property of another Soldier, that he knew had been stolen.

7.  On 12 January 1977, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that he was guilty of the charges against him,
and that he understood the effects of receiving a less than honorable
discharge.
`
8.  On 24 January 1977, a medical examination and a mental status
evaluation cleared the applicant for separation.

9.  On 27 January 1977, the appropriate separation authority approved the
applicant’s discharge request and direct his reduction to the lowest
enlisted grade and the issuance of an under other than honorable
characterization of service.

10.  On 7 February 1977, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service.  His
DD Form 214 (Report of Separation from Active Duty) indicates he had 1 year
and 24 days of active service.




11.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 21 March 1979, the ADRB reviewed and denied the
applicant’s request for upgrade.  The ADRB determined that the applicant’s
discharge was proper and equitable and that the discharge was properly
characterized as under other than honorable conditions.

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 Army Discharge Review Board (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 voluntarily requested separation under AR 635-200,
Chapter 10, for the good of the service, to avoid trial by court-martial.
He was reduced to pay grade E-1, and given a characterization of service as
under other than honorable conditions.  The character of the discharge is
commensurate with his overall record of military service, and there is no
justification for upgrading his discharge.

2.  There is no evidence in the available records nor did he provide
documentation to substantiate his claim that he was unaware that the stereo
had been stolen.

3.  In order to justify 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 has failed to submit evidence that would
satisfy that requirement.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 March 1979.  As
a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 20 March 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

___BE __  ___KW __  ___PM_____  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.




                                  ______Barbara Ellis________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008901                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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