RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20060001029


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Gerald Purcelli               |     |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 (UOTHC) be upgraded to an honorable discharge.

2.  The applicant states he believes the discharge he received was more
severe than the offenses reflected in his service record [warranted].  He
believes he should have been afforded an opportunity to rehabilitate
himself.  He states he was an alcoholic while in the military, but he was
not offered or encouraged treatment for his disease.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); a supplemental letter; two
character references; a list of references; his transcript from Manhattan
Area Technical College; a transcript from Vatterott College; his
certificate for completion of a certification program; his diploma from
Vatterott College; and his Associate of Applied Science Degree from
Manhattan Area Technical College.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 June 1982.  The application submitted in this case is dated
3 January 2006.

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 enlisted in the Regular Army on 20 July 1978 for a period
of four years.  He completed basic training and advanced individual
training and was awarded military occupational specialty 19D (Cavalry
Scout).  He was assigned to Germany in April 1979.

4.  He was advanced to private first class on 20 July 1979.

5.  On 11 May 1980, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for operating a vehicle
while being drunk and causing the vehicle to strike an oncoming passenger
car.  His punishment consisted of a reduction to private E-2; a forfeiture
of $250.00 pay per month for 2 months (suspended until 19 November 1980);
restriction to the limits of unit of assignment, place of duty, billets,
place of worship, and dining facility for 45 days; and extra duty for 45
days.

6.  He was advanced back to private first class on 1 December 1980.

7.  On 2 April 1981, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for failing to go to his appointed place of duty.  His
punishment consisted of a reduction to private E-2; a forfeiture of $100.00
(to be deducted from pay due on or after 1 May 1981); and extra duty for 7
days.

8.  He was advanced to private first class again on 1 October 1981.

9.  On 20 November 1981, the applicant accepted nonjudicial punishment
under Article 15, UCMJ for violating a lawful general regulation by not
paying for his meal at the dining facility.  His punishment consisted of a
reduction to private E-2 and extra duty for 10 days.

10.  On 24 March 1982, charges were preferred against the applicant for
disobeying a lawful order from his superior noncommissioned officer (NCO)
and for being disrespectful in language toward his superior NCO.

11.  A bar to reenlistment was imposed against the applicant on 22 April
1982 for his Article 15 dated 16 (sic) November 1981 and counseling he
received regarding his poor attitude and marginal duty performance.

12.  On 6 May 1982, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offenses charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Veterans
Affairs (VA) if a discharge UOTHC was issued.  The applicant did not submit
statements in his own behalf.

13.  On 14 May 1982, the applicant was charged with additional charges of
failing to go to his appointed place of duty and for disobeying a lawful
order from his superior NCO.

14.  The applicant’s unit commander and intermediate commander recommended
he be discharged from the service.  The senior intermediate commander
recommended disapproval of the request for discharge under the provisions
of Army Regulation 635-200, chapter 10 and recommended the applicant be
tried by court-martial.

15.  On 1 June 1982, the separation authority approved the discharge under
the provisions of Army Regulation 635-200, chapter 10 with issuance of a
discharge UOTHC.

16.  The applicant was discharged 24 June 1982 under the provisions of Army
Regulation 635-200, chapter 10 for the good of the service with a discharge
UOTHC.  He had completed 3 years, 11 months, and 5 days of active military
service.

17.  The applicant provided character references in support of his claim.
The individuals described him as being dependable, reliable, hardworking,
empathetic, and compassionate.

18.  On 24 August 1984, the Army Discharge Review Board (ADRB), by
unanimous vote, denied the applicant’s request for an upgrade of his
discharge.

19.  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 UOTHC
is normally considered appropriate.

20.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

21.  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.

22.  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 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 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.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's record of service shows he received three Article 15s
and a bar to reenlistment.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel for either fully honorable or
general.

3.  The letters of support provided by the applicant were not sufficiently
mitigating to warrant relief in this case.

4.  The applicant’s contentions are noted.  However, there is insufficient
evidence to substantiate the applicant's claims that he was not afforded an
opportunity to rehabilitate himself or that he was not offered treatment
for his disease.

5.  There is no evidence of record which indicates the actions taken in his
case were in error or unjust.  Therefore, there is no basis for granting
the applicant's request.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 August 1984.
As a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 23 August 1987.  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

MP______  MF______  GP______  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.




                                  Margaret Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001029                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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