RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             OCTOBER 14, 2004
      DOCKET NUMBER:     AR2004102787


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Richard Dunbar                |     |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 discharge under other than honorable
conditions be upgraded to a general discharge.

2.  The applicant states that he was accused of black marketing; however,
he was never tried and was put out of the Army.

3.  The applicant provides in support of his application, a copy of his
claim for Veterans benefits and copies of his Reports of Separation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 1 September 1978.  The application submitted in this case is
dated 3 November 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.  On 14 June 1974, he enlisted in the Army in Memphis, Tennessee, for
3 years, in the pay grade of E-1.  He successfully completed his training
as a combat engineer.  He had completed 2 years, 10 months and 25 days of
total active service when he was discharged on 8 May 1977, for the purpose
of immediate reenlistment.  He reenlisted in the Army on 9 May 1977.

4.  Charges were preferred against the applicant on 12 June 1978, for
thirteen specifications of wrongfully soliciting other soldiers by
purchasing rationed items to resell for the production of income, to wit:
cigarettes and liquor; one specification of black-marketing activities by
illegally transferring the cigarettes and liquor to unauthorized and
unidentified personnel for a profit; and one specification of indirectly
purchasing cigarettes and liquor to resell.




5.  The applicant was notified of the charges that were pending against him
on 13 June 1978.  After consulting with counsel, he waived his rights and
he submitted a request for discharge under the provisions of Army
Regulation
635-200, chapter 10, for the good of the service, in lieu of trial by court-
martial.  At the time that he submitted his request for discharge he
acknowledged that he understood the effects of a discharge under other than
honorable conditions and that he would be deprived of any or all Army
benefits and that he may be deprived of many or all benefits administered
by the Veterans Administration.

6.  The appropriate authority approved the request for discharge on
10 August 1978.  Accordingly, on 1 September 1978, the applicant was
discharged under other than honorable conditions, under the provisions of
Army Regulation      635-200, chapter 10, for the good of the service, in
lieu of trial by court-martial.  He had completed 4 years, 2 months and 18
days of total active service.

7.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

8.  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.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.




3.  The applicant’s contentions have been noted by the Board.  However, the
evidence of record clearly shows that he was not tried by a court-martial
because he submitted a request for discharge for the good of the service,
in lieu of trial by court-martial and his request was approved.  He was
advised of the effects of a discharge under other than honorable conditions
and was advised that he might be deprived of many or all Army and VA
benefits.

4.  His request for a chapter 10 discharge, even after appropriate and
proper consultation with a military lawyer, tends to show he wished to
avoid trial by court-martial and the punitive discharge that he might have
received.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 September 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 31 August 1981.  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

rd______  fe ______  ls  ______  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.




            ____Fred Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102787                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041014                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780901                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000.0000/FOR GOOD OF SERVICE       |
|2.  706                 |144.7100.000/SERIOUSNESS OF OFFENSE     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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