RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2005
      DOCKET NUMBER:  AR20050002424


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 be upgraded to an honorable
discharge.

2.  The applicant states, in effect, that it was agreed that 1 year from
his discharge date, his discharge would be upgraded to an honorable
discharge.  Paper work was also submitted with the discharge so this would
take place.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 17 April 1984.  The application submitted in
this case is dated
15 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’s record shows that he enlisted in the Regular Army on
16 October 1980 for a period of 3 years with 3 years, 9 months and 1 day of
prior inactive service.  He completed the required training and was awarded
military occupational specialty 95B10 (Military Police).  The highest grade
attained was pay grade E-4.

4.  On 20 June 1983, the applicant accepted nonjudicial punishment for
operating his privately owned vehicle without having the proper license.
His imposed punishment was a reduction to pay grade E-3 (suspended for 90
days), a forfeiture of $185.00 pay, 14 days restriction and extra duty.

5.  On 13 February 1984, court-martial charges were preferred against the
applicant for dereliction of duty, for failure to obey a lawful order, for
poaching, for the wrongful appropriation of a military vehicle of a value
of about $6,858.00, for making a false statement, for unlawfully and
willfully discharge a firearm under the circumstances such as to endanger
human life and for wrongfully killing a deer within the boundaries of a
National Recreation Area.

6.  On 30 March 1984, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
a discharge Under Other Than Honorable Conditions (UOTHC) and of the rights
available to him.  The applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.  In his request for
discharge, he acknowledged that he was guilty of the charge against him or
of a lesser included offense therein contained which also authorizes the
imposition of a bad conduct or dishonorable discharge.  He further stated
that under no circumstances did he desire further rehabilitation, for he
had no desire to perform further military service.  He also stated his
understanding 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.  He further indicated that he understood that
he could encounter substantial prejudice in civilian life because of an
UOTHC discharge.  That he understood that there is no automatic upgrading
nor review by any government agency of a less than honorable discharge and
that he must apply to the Army Discharge Review Board (ADRB) or the Army
Board of Correction for Military Records.  That if he wish a review of his
discharge, he realizes that the act of consideration by either board does
not imply that his discharge will be upgraded.  He further understood that
once his request for discharge was submitted it may be withdrawn only with
the consent of the commander exercising general court-martial authority.
After being advised of his rights, the applicant submitted a statement in
his behalf.

7.  The applicant stated in effect, that although he initiated Chapter 10
proceedings.  He requests a general discharge because of the job
performance that he maintained during his tours of duty and awards
attesting to his performances.  He further states that he received a
Congressional Commendation Award, a Certificate of Achievement Award, an
Honorary Life Membership to the 519th Military Police Battalion and letters
of appreciation, one of which was from the Inauguration of President Ronald
Reagan.  He worked as a patrol supervisor, a platoon leader driver,
assistant squad leader and numerous other jobs requiring a responsible
person.  He has never received a bad counseling statement, although he
received an Article 15, for driving without a German license.  He also was
charged with driving under the influence of alcohol but the charge was
later dropped.  He finally states that in consideration of all of his
awards and good honest work, he believes that a general discharge would be
a fair decision.
8.  On 6 April 1984, the separation authority approved the applicant’s
request for discharge, that he be reduced to the lowest enlistment grade
and that he receive a Discharge Certificate Under Other Than Honorable
Conditions.  On 17 April 1984, the applicant was discharged accordingly.
The separation document (DD Form 214) he was issued confirms he completed 3
years and 6 months and
2 days of creditable active military service.

9.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

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 UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was told that he would receive an
upgrade within 1 year of his separation were carefully considered.
However, as explained during the separation process the Army does not have,
nor has it ever had, a policy to automatically upgrade discharges.  Each
case is decided on its own merits when an applicant submits an application
to the ADRB or this Board requesting a change in discharge.  Changes may be
warranted if either Board determines that the characterization of service
or the reason for discharge or both were improper or inequitable.

2.  The applicant’s contention that his discharge was unjust was carefully
considered.  However, the evidence of record confirms that after consulting
with defense counsel, the applicant voluntarily requested discharge under
the provisions of Army Regulation 635-200, chapter 10, for the good of the
service, to avoid trial by court-martial.  There is no indication that the
request was made under coercion or duress.  The applicant was charged with
the commission of an offense punishable under the UCMJ with a punitive
discharge.  All requirements
of law and regulation were met, the rights of the applicant were fully
protected throughout the separation process and his discharge accurately
reflects his overall record of service.

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

4.  Therefore, the type of discharge directed and the reasons were
appropriate considering all the facts of the case.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 April 1984; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
16 April 1987.  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

___JS___  __LDS __  __KWL__  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.



                                  ______  John Slone______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002424                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051018                                |
|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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