RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050001475


      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. Eric S. Moore                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 discharge under other than
honorable conditions (UOTHC) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that there is reasonable doubt that he
committed all of the offenses charged, that he was coerced into making a
bad decision on accepting a chapter 10 discharge, and that his good
military record and the recommendations submitted were not taken into
consideration.

3.  The applicant provides an eight page brief in support of his case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 May 1984, the date of his separation from active duty.  The
application submitted in this case is dated 18 January 2005.

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 limitations 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 enlisted in the Regular Army on 3 February 1981 for a
period of 4 years.  He completed basic training and advanced individual
training and was awarded military occupational specialty (MOS) 75B
(Personnel administration Specialist).

4.  On 13 March 1984, court-martial charges were preferred against the
applicant charging him with violation of the Uniform Code of Military
Justice, Article 81, (Conspiracy) and Article 121 (Larceny) for four
specifications of falsifying leave forms and stealing funds totaling about
$933.98.  The applicant was also charged with threatening to kill another
Soldier and other specifications ranging from taking money from Soldiers
for compensation of services, altering a public record (leave control log),
and the taking of another Soldier's property totally $662.00.



5.  On 22 April 1984, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200 (Personnel
Separations).  The applicant indicated in his request that he was guilty of
the charges and/or of lesser included offenses; that he understood he could
be discharged UOTHC and furnished an UOTHC discharge; that 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; and
that he could be deprived of his rights and benefits as a veteran under
both Federal and State law.  He also acknowledged that he could expect to
encounter substantial prejudice in civilian life because of an UTHOC
discharge.

6.  On 23 April 1984, the applicant's commanding officer stated in his
recommendation for discharge that he had considered the applicant's job
performance and the seriousness of his offenses.  He also stated that the
statements that the applicant presented did not reflect the opinions of his
chain of command.

7.  On 14 May 1984, the applicant underwent a mental status evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.  He also signed a
memo on the same day in which he stated he did not desire a separation
medical examination

8.  On 7 May 1984, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200, discharge in lieu of trial by court-
martial.

9.  On 22 May 1984, the applicant was discharged from active duty and was
issued an UOTHC discharge based on chapter 10 of Army Regulation 635-200.
His DD Form 214 shows that he was discharged under the provisions of Army
Regulation 635-200 by reason of "For the Good of the Service-In Lieu of
Court Martial" with a characterization of service of UOTHC.  The applicant
had completed 3 years, 3 months, and 20 days of creditable active military
service.

10.  As a part of the brief submitted by the applicant, he submitted two
statement's that made reference to his personal appearance and that he was
a good Soldier.

11.  The applicant also provided a statement written on his own behalf that
stated, in effect, the reason for his wrongdoing was to make money for him
and his family.  In closing his statement, he asked that the Army forgive
him for the wrong he did.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 28 October 1987, the ADRB reviewed and denied
the applicant's request for upgrade.  The ADRB determined that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as under conditions other than honorable.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his overall record of good service
supports an upgrade of his discharge and the supporting documents he
submitted were also carefully considered.  However, the evidence of record,
while indicating some periods of good performance, documents no acts of
valor, or significant achievement.  Further, the applicant earned no
individual awards during his active duty tenure.  Therefore, it is clear
his overall record of service is not sufficiently meritorious to support an
upgrade of his discharge at this time.

2.  The evidence of record confirms 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.  There is no indication the request was made under
coercion or duress.  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.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 28 October 1987.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 27 October 1990.  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

___jbg  __  ___rtd __  ___swf __  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.




                                  _____Richard T. Dunbar______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001475                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |8 December 2005                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |22 May 1984                             |
|DISCHARGE AUTHORITY     |AR 635-200 . . . . .                    |
|DISCHARGE REASON        |For the Good of the Service in Lieu of  |
|                        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR CHUN                                 |
|ISSUES         1.       |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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