RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          12 August 2004
      DOCKET NUMBER:  AR2004100510


      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. Richard P. Nelson             |     |Analyst              |

      The following members, a quorum, were present:

|     |MS. Ann M. Campbell               |     |Chairperson          |
|     |Mr. James E. Anderholm.           |     |Member               |
|     |Mr. John P. Infante               |     |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 upgrade of his discharge under other than
honorable conditions.

2.  The applicant states that he feels he was “caught up in a situation
that I could not have won due to my race.”  He alleges that his sergeant
was prejudiced against him, that he “never owned a knife in my life,” and
that he was a good soldier.  The applicant further states that since he has
been out of the Army, he has turned his life around and has been living a
“clean life.”

3.  The applicant does not provide any documentation or evidence in support
of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 28 October 1987.  The application submitted in this case is
dated 3 October 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 military records show he enlisted in the Army on 18
October 1977 for a period of 3 years.  He trained in Military Occupational
Specialty 76Y10 (Supply Clerk) and served at Fort Hood, Texas and in
Germany prior to being discharged under other than honorable conditions on
10 December 1979 in pay grade E-1.

4.  On 18 October 1978, nonjudicial punishment was imposed against the
applicant for failure to go at the prescribed time to his appointed place
of duty.

5.  On 20 August 1979, nonjudicial punishment was imposed against the
applicant for failure to stay awake while on duty as Charge of Quarters.

6.  On 20 November 1979, court-martial charges were preferred against the
applicant for violation of four specifications of Article 128 (Assault) of
the Uniform Code of Military Justice.  Trial by court-martial was
recommended.

7.  After consulting with counsel, the applicant submitted a request for
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He 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 Certificate;
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 discharge.  Additionally, he elected to not
submit a statement in his own behalf.

8.  The intermediate commanders recommended that the applicant’s request
for discharge be approved and that he be furnished an Under Other Than
Honorable Conditions Discharge Certificate.

9.  On 3 December 1979, the separation authority approved the applicant’s
request for discharge and directed that he be discharged for the good of
the service under other than honorable conditions and furnished an Under
Other Than Honorable Conditions Discharge Certificate.

10.  Accordingly, the applicant was discharged under other than honorable
conditions on 10 December 1979 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of court-martial.
He had served exactly 2 years, 1 month and 23 days of total active service.

11.  On 28 October 1987, the Army Discharge Review Board reviewed and
denied the applicant’s request for an upgrade of his discharge.

12.  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.

13.  Army Regulation 635-200, 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, 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.

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 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.  Court-martial charges were properly preferred against the applicant.

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

3.  Considering all the facts of the case, the type of discharge directed
and the reasons for separation were appropriate.

4.  The applicant voluntarily requested separation from the Army to avoid
trial by court-martial.  In doing so, he admitted guilt to the stipulated
offense.  Additionally, the applicant requested a discharge to avoid the
possibility of a punitive discharge and having a felony conviction on his
records.  There is no indication that the request was made under coercion
or duress.

5.  The applicant’s contention that he was discriminated against because of
his race is noted.  However, there is no evidence or documentation in the
available record to support his claim and the applicant has not submitted
any evidence or documentation.

6.  The applicant’s entire record of service was considered.  There is no
record or documentary evidence of acts of valor, achievement, or service
that would warrant special recognition.

7.  The reason for discharge and the characterization of service were both
proper and equitable.  Further, the quality of the applicant’s service did
not meet the standards of acceptable conduct and performance expected of
Army personnel; therefore, the applicant is not entitled to an upgrade of
his discharge under other than honorable conditions to honorable.

8.  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 this requirement.

9.  In view of the foregoing, there is no basis for granting the
applicant's request.

10.  Records show the applicant should have discovered the error or
injustice now under consideration on 28 October 1987; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired 3 years from that date.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___amc__  ___jpi __  ___jea___  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.




            ________Ann M. Campbell___________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100510                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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