RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           26 October 2004
      DOCKET NUMBER:  AR2004100347


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:


      |     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Curtis Greenway               |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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 the alleged incident that
resulted in his discharge was not reported correctly.  He states that he
was accused of assaulting a non-commissioned officer when in fact he did
not.  He claims that on the morning of the said event, he and his roommates
had stayed up late the night prior, when a sergeant, the victim of his
alleged assault, entered his room and began to walk towards him.  He also
states that he said good morning twice and that after the sergeant got
within arms distance of him, the sergeant pushed him into a locker.  He
claims that after he stood up to his feet, the sergeant pushed him on the
bed and picked up a bottle of Windex and threatened to mess him up if he
did not get away from him.

3.  The applicant further states that the sergeant then left his room and
entered the hallway.  He claims that he began to get upset and that he
started crying when he lost control and proceeded after the sergeant into
the hallway with the bottle of Windex in his hand.  He claims that he asked
the sergeant twice why did he push him around.  He states that in anger he
broke the bottle on the doorframe cutting his hand and some of the glass
flew towards the sergeant as well.  He finally states that the sergeant
came back towards him, knocked him on the floor, and began kicking him.  He
claims that he did not fight back.

4.  The applicant provides a self-authored statement, six character
statements, and various documents taken from his Official Military
Personnel File (OMPF) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 November 1976.  The application submitted in this case
is dated
11 December 2003.

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.  The applicant’s record shows he initially enlisted in the Army and
entered active duty on 12 June 1972.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11B (Light Weapons
Infantryman).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments & Reductions), that the applicant was promoted to the
rank of private first class (PFC) on 28 March 1973 and that this is the
highest rank he held while serving on active duty.  Item 18 also shows he
was reduced to the rank of private/E-2 (PV2) on 7 April 1975 and to
private/E-1 (PV1) on
13 September 1976, due to misconduct.

5.  Item 9 (Awards, Decorations and Campaigns) of the applicant’s DA Form 2-
1 further shows that the applicant earned the National Defense Service
Medal and Parachutist Badge during his active duty tenure.

6.  The applicant’s record reveals 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 the following five
separate occasions for the offense(s) indicated:  7 May 1975, for
disobeying a lawful order given by two superior non-commissioned officers
on two separate occasions and for failing to go an appointed place at a
prescribed time; 13 January 1976, for being absent without leave (AWOL); 23
April 1976, for failing to go to an appointed place at a prescribed time
and for willfully disobeying a lawful order given by his superior
commissioned officer; 13 September 1976, for being incapacitated for proper
performance of his duties as a result of previous indulgence in
intoxicating liquor and for disobeying a lawful command to remain in his
barracks until he was fully recovered from his intoxication given by his
superior commissioned officer; and 1 October 1976, for being drunk and
disorderly in a public place.

7.  On 15 October 1976, a Charge Sheet (DD Form 458) was prepared that
preferred two court-martial-charges against the applicant for the following
violations of the UCMJ:  Charge I, one specification of violating Article
134 by being drunk and disorderly in a public place and for wrongfully
communicating a threat to kill another soldier; and Charge II, one
specification of violating Article 128 by committing an assault upon
another soldier by cutting him on the neck with a dangerous weapon, to wit;
a broken bottle.
8.  On 5 November 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial and the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and the procedures and rights available to
him.  Subsequent to this counseling, the applicant voluntarily 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.

9.  In his request for discharge, the applicant acknowledged that he was
guilty of the charge against him or of a lesser-included offense that also
authorized the imposition of a punitive discharge.  He further acknowledged
his understanding that if he received an UOTHC discharge, he could be
deprived of many or all Army benefits, that he could be ineligible for many
or all benefits administered by the Department of Veterans Affairs (VA),
and that he could be deprived of his rights and benefits as a veteran under
both Federal and State law.  He also indicated that he understood he could
face substantial prejudice in civilian life because of his UOTHC discharge.


10.  On 12 November 1976, the separation authority approved the applicant’s
request for discharge and directed that he receive an undesirable discharge
under the provisions of chapter 10, Army Regulation 635-200.  On 23
November 1976, the applicant was discharged accordingly.

11.  The DD Form 214 the applicant was issued on the date of his discharge,

23 November 1976, shows that he had completed a total of 4 years, 5 months,
and 12 days of creditable active military service.

12.  The applicant petitioned the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 3 August 1978 and again on 22 August 1979.  The
ADRB determined that the applicant’s discharge was proper and equitable,
and it voted to deny his initial request on 17 August 1978 and his second
request on 28 October 1980.

13.  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.
A discharge UOTHC is normally considered appropriate.
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 (AR 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 Board 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 discharge should be upgraded
because all evidence of the alleged incident was not reported was carefully
considered.  However, this factor was not found to be sufficiently
mitigating to warrant the requested relief.  The evidence of record
confirms he was charged with the commission of an offense punishable under
the UCMJ with punitive discharge.

2.  The record further shows that after consulting legal counsel, the
applicant voluntarily requested discharge from the Army in lieu of trial by
court-martial.  In doing so, he admitted guilt to an offense(s) under the
UCMJ that authorized a punitive discharge.  All requirements of law and
regulation were met and the applicant’s rights were fully protected
throughout the separation process.  As a result, an upgrade to his
discharge would not be appropriate.

3.  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 request.

4.  Records show that the applicant exhausted his administrative remedies
in this case when his case was reviewed by the ADRB on 28 October 1980.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 27 October 1983.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____ECP_  ____JS__  ___CG_   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 N. Slone_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100347                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/26                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1976/11/23                              |
|DISCHARGE AUTHORITY     |AR635-200, CHAPTER 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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