RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 DECEMBER 2005
      DOCKET NUMBER:  AR20050004170


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 records be corrected by upgrading his
discharge to general.

2.  The applicant states that he was never given a hearing and had no
counseling regarding his discharge.  He and another Soldier were told to
purchase a television from the PX [Post Exchange] and deliver it to an
address where they would get paid.  He was unaware that what he was doing
was against the law.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 April 1971.  The application submitted in this case is dated 8 March
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 records indicate he enlisted and entered active duty on
31 January 1970, for a period of 2 years.  He served in Korea from July
1970 to April 1971.

4.  On 21 July 1970, he was punished under the provisions of Article 15,
Uniform Code of Military Justice for disobeying a lawful order from a
superior noncommissioned officer.  His punishment included restriction, a
forfeiture of pay, and reduction (suspended).

5.  On 8 February 1971, his commander preferred court-martial charges
against him for conspiring with Korean Nationals by receiving a false
letter of authorization and $150.00 military payment certificate which was
used to purchase a television at the Post Exchange; for receiving
unauthorized military payment certificates; and for purchasing duty-free
imported goods for the purpose of transferring these items to a person not
authorized duty-free import privileges.
6.  On 18 February 1971, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, Chapter 10, in lieu of
trial by court-martial.  He acknowledged that he understood that he may be
deprived of many or all Army benefits and that he may be ineligible for
many or all benefits administered by the Veterans Administration, and that
he may be deprived of his rights and benefits as a veteran under both
Federal and State law.  He also acknowledged that he understood the effects
of receiving an under other than honorable conditions (UOTHC) discharge.

7.  On 25 February 1971, a medical examination cleared the applicant for
separation.

8.  On 1 March 1971, his unit and intermediate commanders recommended
approval of his discharge request and recommended he be issued an
undesirable discharge.

9.  On 29 March 1971, the appropriate separation authority approved his
discharge request and the issuance of an undesirable discharge.

10.  On 2 April 1971, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service, in lieu
of court-martial.

11.  On 12 July 1982 the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

12.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an Undesirable Discharge Certificate.

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
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR 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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
error which would tend to jeopardize his rights.

2.  The applicant voluntarily requested separation under AR 635-200,
Chapter 10, for the good of the service, to avoid trial by court-martial.

3.  The applicant’s contention that he was never given a hearing and had no
counseling in regard to his discharge is without merit.  The applicant
consulted with legal counsel prior to submitting his request for discharge
and acknowledged that he understood the ramification of receiving a less
than honorable conditions discharge.

4.  Had the applicant believed that he was not guilty of the charges
against him he could have pled his case before a court-martial.  Rather, he
elected to request an administrative discharge.  Such action supports a
conclusion the applicant was well aware his actions were unlawful.

5.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 July 1982.  As
a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 11 July 1985.  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

__JH____  __RB ___  __JM ___  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.




                                  _______James Hise________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004170                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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