RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 January 2005
      DOCKET NUMBER:  AR2004106255


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that he was wrongfully charged and
unjustly punished.  He states that while he was where the victim said he
was, he was not involved in taking any of her money.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 December 1979.  The application submitted in this case
is dated 6 March 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 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 enlisted in the United States Army
Reserve (USAR) on 23 September 1977.  He was trained in and awarded
military occupational specialty (MOS) 76Y (Supply Specialist).

4.  On 13 July 1979, the applicant was involuntarily ordered to active duty
for
18 months and 16 days and was assigned to Germany.

5.  On 10 October 1979, a Charge Sheet (DD Form 458) was prepared
preferring three court-martial charges against the applicant for violating
Articles 86, 121 and 134 of the Uniform Code of Military Justice (UCMJ).
Charge I was for his failing to go to his appointed place of duty at the
time prescribed.  Charge II was for his stealing a one-hundred Deutsche
Mark note, the property of a German national and Charge III was for his
being drunk and disorderly.

6.  The applicant consulted with legal counsel and was advised of the basis
for the contemplated trial by court-martial, the maximum permissible
punishment authorized under the UCMJ, the possible effects of an UOTHC
discharge, and of the procedures and rights that were available to him.
Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.

7.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, 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.

8.  On 28 November 1979, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
11 December 1979, the applicant was discharged accordingly.  The DD Form
214 he was issued confirms he completed a total of 4 months and 29 days of
active military service during the period documented by the DD Form 214.
It also confirms that he received no awards or decorations during the
period and that he held the rank of private/E-1 on the date of his
discharge.

9.  On 22 February 1982, the Army Discharge Review Board voted to deny the
applicant’s request for an upgrade of his discharge after concluding that
his discharge was proper and equitable.

10.  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.
11.  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 (Army Regulation 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 contentions that he was falsely accused and that his
discharge was unjust were carefully considered.  However, there is
insufficient evidence to support these claims.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  The
record further confirms all requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Finally, it is concluded that the applicant’s
discharge accurately reflects his overall record of undistinguished
service.

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 requirement.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 22 February 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 21 February 1985.  However, he 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

___JTM__  __LDS__  ___CAK _  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.




            ____Linda D. Simmons ___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106255                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/11                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/12/11                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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