RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 JULY 2006
      DOCKET NUMBER:   AR20060000082


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Vick                    |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Donald Lewy                   |     |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 discharge under other than honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he served 6 years and received an
honorable discharge; however, his last discharge was under other than
honorable conditions and he desires an upgrade of that discharge because it
has been over 20 years since he was discharged.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 March 1980.  The application submitted in this case is dated
17 December 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.  He enlisted in Miami, Florida, on 6 September 1974 for a period of 3
years and training as a ground surveillance radar crewman.  He completed
his basic combat training at Fort Knox, Kentucky, and his advanced
individual training (AIT) at Fort Huachuca, Arizona.  Upon completion of
his AIT he was transferred to Fort Lewis, Washington.  On 5 December 1975,
nonjudicial punishment (NJP) was imposed against him for failure to go to
his place of duty.  His punishment consisted of a reduction to the pay
grade of E-1 (suspended for 3 months), a forfeiture of pay, extra duty and
restriction.

4.  He was transferred to Korea on 9 February 1976 and was advanced to the
pay grade of E-4 on 1 September 1976.  On 23 June 1977, he was honorably
discharged for the purpose of immediate reenlistment.  He reenlisted on 24
June 1977 for a period of 4 years, assignment to Fort Lewis and a selective
reenlistment bonus.  He departed Korea on 2 March 1977 and was transferred
to Fort Lewis.
5.  On 9 April 1978, NJP was imposed against him for four specifications of
failure to go to his place of duty and for disobeying a lawful order from a
superior noncommissioned officer.  His punishment consisted of a reduction
to the pay grade of E-3 (suspended for 60 days) and a forfeiture of pay.


6.  On 4 May 1979, NJP was imposed against him for the wrongful possession
of marijuana.  His punishment consisted of a reduction to the pay grade of
E-3 (suspended for 90 days), a forfeiture of pay and additional duty for 45
days.

7.  The applicant received orders transferring him to Germany and he
departed absent without leave (AWOL) on 25 September 1979.  He remained
absent until he was returned to military control at Fort Ord, California,
where charges were preferred against him for the AWOL offense.

8.  On 9 November 1979, after consulting with defense counsel, the
applicant 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.  In his request he indicated that he
understood the charges that had been preferred against him, that he was
making the request of his own free will, without coercion from anyone and
that he was aware of the implications attached to his request.  He also
admitted that he was guilty of the charges against him or of lesser
included offenses which authorized the imposition of a bad conduct or
dishonorable discharge.  He acknowledged that he understood that he could
receive a discharge under other than honorable conditions and that he might
be deprived of all benefits as a result of such a discharge.  He further
declined to submit a statement or explanation in his own behalf.

9.  The appropriate authority (a brigadier general) approved his request
and directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions
on 17 March 1980, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 2 years, 7 months and
12 days of  active service during his current enlistment and had 42 days of
lost time due to AWOL.  He had served a total of 5 years and 6 months of
total active service.

11.   He applied to the Army Discharge Review Board (ADRB) on 15 June 1981
for an upgrade of his discharge and was granted a personal appearance
before that board’s traveling panel in St Petersburg, Florida, on 23 April
1982.  He asserted that he was having personal problems and did not want to
go to Germany.  He also asserted that he had a shaving profile and was
being harassed by his chain of command because of the shaving profile.
After reviewing all of the evidence and testimony presented, the ADRB
determined that his discharge was both proper and equitable under the
circumstances and voted unanimously to deny his request on 7 May 1982.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions was then and still is
normally considered appropriate.

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 voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

4.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to his
undistinguished record of service during such a short period.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 May 1982.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 6 May 1985.  The applicant did
not file within the ABCMR's 3-year statute of limitations and has not
provided 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

___JV  __  ___BE __  ___DL___  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.  .  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 Vick_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000082                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19800317                                |
|DISCHARGE AUTHORITY     |AR 635-200/ch10 . . . . .               |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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