RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050016245


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 under other than honorable conditions
discharge be upgraded to under honorable conditions.

2.  The applicant states, in effect, that his under other than honorable
conditions discharge was unjust because he had served his country for 2
good years.

3. The applicant provides a copy of his DD Form 214 (Certificate of Release
or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 26 September 1980, the date of his discharge from active
duty.  The application submitted in this case is dated 12 October 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  
31 May 1978.  He completed basic combat training and advanced individual
training, and was awarded the military occupational specialty 52D10 (Power
Generation Equipment Repairer).  The highest rank he attained while serving
on active duty was Private First Class/pay grade E-3.

4.  On 13 March 1980, the applicant accepted nonjudicial punishment (NJP)
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for damaging government property by kicking in a wall with his
foot.

5.  On 27 June 1980, the applicant was convicted in Pierce County Superior
Court of theft in the first degree.



6.  On 5 August 1980, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an undesirable discharge, and of the procedures and rights that
were available to him.

7.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood 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, and that he could be deprived of his rights and benefits as a
veteran under both Federal and State law.  He also acknowledged that he
understood that he may expect to encounter substantial prejudice in
civilian life by reason of a discharge under other than honorable
conditions.

8.  On 9 September 1980, the separation authority approved the applicant’s
request for discharge and directed that he receive an under other than
honorable conditions discharge and be reduced to Private/pay grade E-1.  On
 
26 September 1980, the applicant was discharged accordingly.  The DD Form  
214 he was issued confirms he completed a total of 2 years and 23 days of
creditable active military service.

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

10.  Army Regulation 635-200 (Personnel Separations), currently in effect,
sets forth the basic authority for the separation of enlisted personnel.
Chapter  
14, establishes policy and prescribes procedures for separating members for
misconduct.  Specific categories include minor disciplinary infractions, a
pattern of misconduct, commission of serious offense, conviction by civil
authorities, desertion, or absences without leave.  Action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his under other than honorable conditions
discharge be upgraded to under honorable conditions.

2.  The evidence of record shows that the applicant had accepted NJP and
was convicted by a civil court for theft in the first degree.

3.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.

4.  The applicant's discharge was accomplished in compliance with
applicable regulations and there is no indication of procedural errors or
injustice that would tend to jeopardize his rights.  The evidence provides
sufficient basis for an under other than honorable conditions discharge for
misconduct and conviction by civil court.  Therefore, he is not entitled to
an honorable or a general discharge.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 September 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
25 September 1983.  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

___clg___  ___jbg__  ___pmt __  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                 |AR20050016245                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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