RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060001741


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 he would like to have his
discharge upgraded.

2.  The applicant states, in effect, that prior of being discharged from
the Army, he believes that he was suffering from a “nervous breakdown” and
was incompetent to handle his affairs, in a reasonable manner.  He was in
military confinement and he was not sure why he was being held.  He was
appointed counsel, he was told by counsel that if he applied for a
discharge he would be given a general discharge, under honorable conditions
and he would be allowed to leave the Army.  He was also told that if he did
not apply for a discharge under chapter 10, the Army would see to it that
an “example” would be made of him.  However, he was not told that the
application for a chapter 10 discharge could result in an undesirable
discharge.  He believes that his diminished capacity made him unable to
adequately defend himself or even to understand the ramifications of what
he was doing.  He further states, in effect, that he was undergoing
psychiatric counseling at the time of the incident.  He believes, that
after 5 years of faithful and honorable service, he should have been given
a chance for a better outcome than that which was granted.  Almost 30 years
have passed and he still finds this burden an extremely difficult thing to
bear.  He states, that he is not seeking Veterans benefits, and he has no
intentions of doing so.  His desire is only to be able to stand next to
“Old Glory” and feel that he is not soiling it due to a black mark on his
name.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 April 1976, the date he was separated from active duty
service.  The application submitted in this case is dated 20 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’s record shows that he enlisted in the Regular Army on 1
April 1971, for a period of 3 years.  He completed the required training
and was awarded military occupational specialty 11B10 (Light Weapons
Infantryman).  On 5 February 1973, the applicant reenlisted in the Regular
Army for a period of
6 years, after serving 1 year, 10 months and 4 days of active military
service.  The highest grade he attained was pay grade E-5.

4.  On 27 January 1976, court-martial charges were preferred against the
applicant for threatening his commanding officer with an M-16 rifle, for
larceny of government property and for disobeying a lawful order.

5.  On 13 February 1976, the applicant was referred to the Department of
Psychiatry at Fort Campbell, Kentucky by his attorney for a psychiatric
evaluation, which was incorporated as part of his defense in his court-
martial.

6.  On 27 February 1976, a psychiatric conference of three psychiatrists
was convened and the applicant was evaluated.  It was determined that the
applicant was alert, oriented, cooperative, was somewhat depressed about
his current situation.  He showed no evidence of an acute thought disorder.
 The psychiatrists determined that the applicant was mentally competent to
withstand board judicial proceedings and meet retention standards.

7.  On 22 March 1976, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
a discharge characterized as under other than honorable conditions and of
the rights available to him.  The applicant voluntarily requested discharge
for the good of the service, in lieu of trial by court-martial.  In his
request for discharge, he acknowledged that he was making this request of
his own free will and had not been subjected to any coercion by any person.
 He had been advised of the implications that are attached to it and by
submitting the request for discharge; he acknowledged that he was guilty of
the charge against him which also authorizes the imposition of a bad
conduct or dishonorable discharge.  He further acknowledged 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 (VA), and that he could be deprived
of his rights and benefits as a veteran under both Federal and State law.
He further indicated that he understood that he could encounter substantial
prejudice in civilian life by reason of a characterization of service of
under other than honorable conditions.

8.  On 1 April 1976, the separation authority approved the applicant’s
request for discharge, directed that the applicant be reduced to the lowest
enlistment grade and that he receive an Undesirable Discharge Certificate.
On 5 April 1976, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued confirms he completed a total of 5
years and 4 days of creditable active military service.

9.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge characterized as under other than honorable conditions was
normally considered appropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant were carefully considered and found to
have insufficient merit in this case.  There is no evidence nor has the
applicant provided any evidence that would support his allegations.
Therefore, given the circumstances in this case, there is insufficient
evidence to support this claim at this time.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of service.

3.  In the absence of any evidence of record or independent evidence to the
contrary, it is concluded that all requirements of law and regulation were
met and the rights of the applicant were fully protected throughout the
separation process. Further, the applicant’s discharge accurately reflects
his overall record of service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 April 1976, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
4 April 1979.  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

___JTM__  ___PBF_  ___RCH_  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.




                                             John T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/10/17                              |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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