RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 October 2005
      DOCKET NUMBER:  AR20050003073


      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. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Laverne V. Berry              |     |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 be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he knows that he got into some
trouble while he was in service, but this should not disqualify him from
receiving an honorable discharge.  He made a mistake and he is quite sure
that he is not the only one who has made an honest mistake.  It boils down
to this, he served in the Army and served his country; therefore he
believes that he deserve an honorable discharge.  He further states, that a
person can change and he believes that he has changed.  He has remarried
and has a beautiful wife and a loveable 3-year old son.  He believes that
it is unfair to him and his family to be ineligible for any benefits as a
veteran.  He believes that the Board should reconsider their judgment and
give him an honorable discharge with benefits for him and his family,
because he deserves an honorable discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 21 August 1978, the date he was separated from
active duty.  The application submitted in this case is dated 10 February
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 he enlisted in the Regular Army and
entered active duty on 8 June 1977, for a period of 3 years.  He was
trained in, awarded and served in military occupational specialty (MOS)
36K10 (Tactical Wire Operation Specialist).

4.  On 5 July 1978, court-martial charges were preferred against the
applicant for unlawfully kicking a German National in her face and legs
with his feet, for committing an indecent assault upon a German National,
and for wrongfully communicating a threat to rape the German National.

5.  On 21 July 1978, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
an under other than honorable conditions (UOTHC) discharge 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 by reason of an
UOTHC.

6.  On 1 August 1978, the separation authority approved the applicant’s
request for discharge and directed that he receive a Discharge Certificate
Under Other Than Honorable Conditions.  On 21 August 1978, the applicant
was discharged accordingly.  The separation document (DD Form 214) he was
issued confirms he completed 1 year, 2 months and 14 days of creditable
active military service.

7.  On 26 February 1982, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

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 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. However, at the time of the applicant's separation the
regulation provided for the issuance of a Discharge Certificate UOTHC.

9.  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 contentions of the applicant were carefully considered and found to
have insufficient merit in this case.

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.  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 short and 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 26 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 25 February 1985.  However, he failed to
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

___CLG _  __RTD   _  __LVB __  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.




                                  ___ Curtis L. Greenway  ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003073                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051006                                |
|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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