RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050007334


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 his under other than honorable conditions
discharge be upgraded.

2.  The applicant contends that his record which shows he was charged with
stealing a purse is in error.  He states he was not represented by a Judge
Advocate General (JAG) lawyer.  He also claims that Specialist G _ _ _ _ _
_ is the individual who stole the purse.

3.  The applicant provides a self authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 May 1981, the date of his discharge.  The application
submitted in this case is dated 4 May 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 show he enlisted in the Regular Army for a
period of three years and entered active duty on 22 August 1978, at age 19.
 After completion of basic and advanced individual training, he was awarded
military occupational specialty 12B10 (Combat Engineer) and was assigned to
Company B, 78th Engineer Battalion, in Germany for duty.

4.  The applicant's records do not contain the facts and circumstances of
his separation.

5.  On 24 February 1981, the applicant was tried before a Summary Court-
Martial for failing to go at the time prescribed to his appointed place of
duty on 12 December 1980 and for stealing a handbag containing 90 Deutsche
Marks, and various personal items of a value of about $55.00, on 27
November 1980.  The applicant was found guilty and sentenced to reduction
to private/pay grade
E-1, forfeiture of $150.00 pay per month for one month and confinement at
hard labor for sixteen days.  The summary court-martial also directed that
the applicant be confined at the U. S. Army Retraining Brigade at Fort
Riley, Kansas.

6.  U. S. Army Confinement Facility, Mannheim, Orders 20-3, dated 3 March
1981, shows the applicant was transferred to the U. S. Army Retraining
Brigade at Fort Riley, Kansas, for further confinement with a reporting
date of 5 March 1981.

7.  The applicant's service records reveal a disciplinary history that
shows non-judicial punishment (NJP) under the provisions of Article 15 of
the Uniform Code of Military Justice (UCMJ) on 24 April 1981, failing to
obey a lawful order.  His punishment consisted of forfeiture of $35.00 pay
per month for one month and extra duty and restriction for 5 days.

8.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 1 May
1981, shows the applicant underwent a psychiatric evaluation by a Medical
Corp Officer at Irwin Army Community Hospital, Fort Riley, Kansas.

9.  The doctor found that there were no disqualifying mental defects
sufficient to warrant separation through medical channels, that the
applicant was mentally responsible, both to distinguish right from wrong
and to adhere to the right, and that he had the mental capacity to
understand and participate in board proceedings.

10.  A Standard Form 88 (Report of Medical Examination, dated 1 May 1981,
shows that he was found medically qualified for separation.

11.  The applicant's DD Form 214 (Report of Separation from Active Duty)
with the separation date of 13 May 1981, shows he was separated under the
provisions of chapter 14-33b(1) of Army Regulation 635-200 (Personnel
Separations) for frequent involvement in incidents of a discreditable
nature with civil or military authorities.

12.  The applicant's DD Form 214 also shows that he was issued an Under
Other Than Honorable Conditions Discharge Certificate.  He had served 2
years, 8 months, and 9 days of total active service and had 13 days of lost
time due to confinement.

13.  The applicant submitted a self-authored statement in which he
essentially states the type of discharge he received was an injustice.  He
adds it has affected his life as a single parent as well as his daughter’s.
 He states his daughter's mother passed away at the age of 34 in 1997.  He
continues by saying he decided to appeal the injustice of his discharge.
He states, his discharge affects his ability to obtain government jobs and
has caused him to lose out on promotions.  He contends that he did not
steal the purse, but alleges Specialist G _ _ _ _ _ _ took the purse.

14.  There are no records to show that the applicant applied to the Army
Discharge Review Board for review of his discharge case within its statute
of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for the convenience of
the government.  Paragraph 14-33b (1) states, in pertinent part, that
members involved in frequent incidents of a discreditable nature with civil
or military authorities were subject to separation for misconduct.  A
discharge under other than honorable conditions is normally considered
appropriate.

16.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

18.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 May 1984.  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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions
discharge should be upgraded.

2.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of the discharge is commensurate
with his overall record.

3.  Review of the applicant’s record of service shows that he had various
incidents of misconduct, a summary court-martial, nonjudicial punishment,
and lost time due to confinement.  Therefore, his quality of service did
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  This misconduct and lost time also renders his service
unsatisfactory.  As a result, there is insufficient basis for upgrading his
discharge to a general or honorable discharge.

4.  The applicant contends that he was young and did not steal the purse
and has since become a single parent.  He also feels this injustice has
affected his ability to get promotions and employment opportunities.

5.  Records indicate that the applicant was 19 years old at the time of his
discharge.  However, there is no evidence that indicates the applicant was
any less mature than other soldiers of the same age who successfully
completed military service.

6.  The applicant's record also shows he was charged with stealing the
purse; but states that another Soldier actually stole the purse.  The
applicant's contentions relate to evidentiary and procedural matters which
were finally and conclusively adjudicated in the court-martial appellate
process, and furnish no basis for re-characterization of the discharge.

7.  The applicant’s contentions regarding his personal problems are noted.
However, there is no substantiating evidence that the events occurred as he
contends.  Further, these factors do not outweigh the serious nature of the
applicant's offenses and, therefore, are not sufficiently mitigating to
warrant relief.




8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 12 May 1984.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_BI_______  __EM______  _DWS_______  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.





                                         __Bernard P. Ingold___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007334                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14-33b(1)                |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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