RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           8 November 2005
      DOCKET NUMBER:  AR20050004399


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane Armstrong               |     |Member               |
|     |Ms. Delia Trimble                 |     |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 changed to a
medical discharge and that his rank be restored to pay grade E-7.

2.  The applicant states, in effect, a medical discharge was approved by
the company commander in 1987.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred
on
20 October 1989.  The application submitted in this case is dated 16 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 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 enlisted on 19 January 1968 and remained on active duty
through continuous reenlistments.  He attained the rank of sergeant first
class
(E-7) effective 7 August 1982.

4.  On 2 November 1987, the applicant underwent a physical examination for
the purpose of a Medical Evaluation Board (MEB).

5.  On 25 April 1988, the applicant was convicted by a general court-
martial of bribery.  He was sentenced to be reduced to E-1, forfeiture of
all pay and allowances, and a bad conduct discharge.  On 20 May 1988, the
convening authority approved the sentence.  On 30 November 1988, the U.S.
Army Court of Military Review affirmed the findings of guilty and only so
much of the sentence as provided for a bad conduct discharge, forfeiture of
$447 pay per month for 12 months, and reduction to E-1.  On 30 March 1989,
the bad conduct discharge was ordered to be executed.

6.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  Although the applicant was
adjudged a bad conduct discharge, his DD Form 214 (Certificate of Release
or Discharge from Active Duty) for the period ending 20 October 1989 shows
that he was discharged with a discharge under other than honorable
conditions on
20 October 1989 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service, in lieu of court-martial.  He had served
21 years 9 months, and 2 days of creditable active service.

7.  In an advisory opinion prepared by U.S. Total Army Personnel Command in
an earlier ABCMR case (on another issue), it states there is no record
available to indicate that the applicant had ever applied for a Chapter 10
discharge in lieu of court-martial.  It also states there is no file copy
of a request for discharge under the provisions of Chapter 10 in either the
Soldier's Military Personnel File or his official microfiche.  It further
states that after discussion of this case with personnel at Fort Ord it was
the consensus of opinion that a person or persons unknown at this time,
unwittingly, and without malice, elected to issue this discharge
certificate.

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,
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

9.  Paragraph 1-14 of Army Regulation 635-200 states when a Soldier is to
be discharged under other than honorable conditions, the separation
authority will direct an immediate reduction to the lowest enlisted grade.

10.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Paragraph 4-2 states a Soldier may not be referred for, or continue,
disability processing if under sentence of dismissal or punitive discharge.
 Paragraph 4-3 states that an enlisted Soldier may not be referred for, or
continue, disability processing when action has been started under any
regulatory provision which authorizes a characterization of service of
under other than honorable conditions.



DISCUSSION AND CONCLUSIONS:

1.  Under either a discharge under other than honorable conditions under
the provisions of Army Regulation 635-200, chapter 10, or a bad conduct
discharge as a result of court-martial, the applicant was not eligible for
further physical disability processing.  Therefore, there is no basis for a
medical discharge.

2.  Although the applicant requests that his rank be restored to E-7, the
governing regulation states that a Soldier discharged under other than
honorable conditions would be reduced to E-1.  As a result of his court-
martial, he was also reduced to E-1.  Therefore, there is no basis for
granting the applicant's request.

3.  Records show the applicant should have discovered the alleged errors
now under consideration on 20 October 1989; therefore, the time for the
applicant to file a request for correction of any error expired on 19
October 1992.  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

SK_____  __DA___  __DT____  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.



            __Stanley Kelley______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004399                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |108.0000                                |
|2.                      |108.0900                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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