RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 July 2004
      DOCKET NUMBER:  AR2004105081


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 be upgraded from under other
than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he had problems based on many
offenses, but they were mostly minor offenses and related to his wife's
family.

3.  The applicant further states that his chain of command was jealous of
him because he achieved Top Gun Distinguished Gunner, was the Unofficial
Heavyweight Champion for United States Forces, served as manager and
bouncer of a club, and was well liked and respected in the German
community.

4.  The applicant provides an undated self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 January 1979, the date of his discharge.  The application
submitted in this case is dated 21 February 2002.

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 entered active duty on 29 February 1972 and successfully
completed basic training and advanced individual training.  He was awarded
the military occupational specialty 11E10 (Armor Crewman) and continuously
served on active duty until being separated with a under other than
honorable conditions discharge on 2 February 1979.

4.  On 1 April 1974, nonjudicial punishment (NJP) was imposed against the
applicant for selling a German National five cartons of cigarettes for
personal gain or profit on 19 March 1974.  His punishment consisted of
forfeiture of $60.00 for one month, and extra duty for seven days.


5.  On 7 June 1974, NJP was imposed against the applicant for failure to be
at his prescribed place of duty on 2 June 1974.  His punishment consisted
of reduction to private first class/pay grade E-3, and fourteen days extra
duty.

6.  On 24 October 1974, NJP was imposed against the applicant for failure
to be at his prescribed place of duty on 12 October 1974.  His punishment
consisted of forfeiture of $56.00 for one month, reduction to private first
class/pay grade E-3 (Suspended for 90 days), and fourteen days extra duty,
and fourteen days restriction.

7.  On 14 July 1975, NJP was imposed against the applicant for being
derelict in the performance of his duties on 10 July 1975.  His punishment
consisted of reduction to private first class/pay grade E-3 and fourteen
days extra duty.

8.  On 18 March 1977, NJP was imposed against the applicant for willfully
disobeying a lawful command from an superior officer on 6 March 1977.  His
punishment consisted of forfeiture of $100.00 for one month, reduction to
private first class/pay grade E-3, and fourteen days in the Correctional
Confinement Facility (CCF) "Reduction and CCF are suspended for 60 days."

9.  A DA Form 3975 ( Military Police Report) dated 13 September 1978, shows
that the Bad Hersfeld Military Police Station, at Bad Hersfeld, Germany,
was notified that an German National had filed a written complaint against
the applicant for an assault on 31 July 1978.

10.  On 30 October 1978, the 3rd Squadron commander of the 11th Armored
Cavalry Regiment recommended that the applicant be tried for assault,
failure to be at his prescribed place of duty, and derelict in the
performance of his duties by a Special Court-Martial empowered to adjudge a
bad conduct discharge.

11.  The applicant's records further show that the Special Court-Martial
Convening Authority approved and directed that the charges be referred to
trial based on Special Court-Martial Convening Order Number 126, dated 5
October 1978.

12.  On 28 November 1978, the applicant consulted with his appointed
counsel at the United States Trial Defense Service, Fulda Field Office and
requested discharge for the good of the service in lieu of court-martial
under the provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).

13.  The applicant signed his request for discharge which showed that he
was making the request of his own free will; that he was afforded the
opportunity to speak with counsel; that he was advised that he may be
furnished an Under Other Than Honorable Discharge Certificate; that he will
be deprived of many or all Army benefits; that he may be ineligible for
many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of a discharge
under other than honorable conditions.

14.  On 5 December 1978, the applicant's request for discharge for the good
of the service was approved by the lieutenant general in command of
Department of the Army, Headquarters, V Corps, Federal Republic of Germany.


15.  On 2 January 1979, the applicant was discharged from active duty and
was issued an under other than honorable conditions discharge based on
chapter 10 of Army Regulation 635-200.  He served 6 years, 9 months, and
24 days of active duty service and had accrued 11 days of lost time.

16.  The applicant essentially stated in his self-authored statement that
most of his problems were related to his wife's family which made his
marriage somewhat of a showcase.

17.  The applicant further stated that his chain of command was jealous of
him because of the special privileges he had in the German community.  The
applicant stated that he helped co-manage a club with his cousin's wife.
He continued that he got into an altercation with the husband which helped
lead to his dismissal.

18.  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.

19.  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 (emphasis
added), 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.

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he had problems based on many offenses, but
they were mostly minor offenses and related to his wife's family.  However,
there is no evidence in the applicant's service records and the applicant
has provided no evidence that supports this claim.

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

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 characterization of and reason for the applicant’s
discharge were both proper and equitable.  As a result, his discharge
accurately reflects his overall record of service.

4.  The applicant’s record of service included five Article 15's and 11
days of lost time due to AWOL.  Based on this record of indiscipline, the
applicant’s service clearly did not meet the standards of acceptable
conduct and performance of duty for Army personnel which are required for
issuance of an Honorable Discharge Certificate.

5.  Based on the applicant’s multiple offenses his record of service did
not meet the regulatory standard of satisfactory service.  In the absence
of a record of satisfactory service, the applicant is not entitled to a
General Discharge Certificate.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 January 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 1 January 1979.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

_MM___  __ECP__  _TEO_____  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.




                 _Melvin H. Meyer__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR                                      |
|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          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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