RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 September 2006
      DOCKET NUMBER:  AR20060001744


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Jonathan K. Rost              |     |Member               |
|     |Mr. David K. Hassenritter         |     |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 his under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he feels he has more than paid for his
poor judgment and lack of responsibility during his last tour of duty.

3.  The applicant provides a self-authored statement, and three third-party
statements in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 21 June 1979.  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 initially enlisted in the Regular
Army and entered active duty on 1 October 1973.  He was trained in,
awarded, and served in military occupational specialty (MOS) 76D (Material
Supply Specialist).

4.  On 28 June 1977, the applicant was honorably discharged for the purpose
of immediate reenlistment, and on 29 June 1977, he reenlisted for 3 years.
His record shows he was promoted to specialist four on 11 March 1976, and
this is the highest rank he attained while serving on active duty.  His
record documents no acts of valor, significant achievement, or service
warranting special recognition.

5.  The applicant's disciplinary history includes his acceptance of non-
judicial punishment (NJP) under the provisions of Article 15 of the Uniform
Code of Military Justice (UCMJ) on three separate occasions.

6.  On 23 January 1978, the applicant accepted NJP for being absent without
leave (AWOL) from 9 through 18 January 1978.  His punishment was a
reduction to private first class (PFC).

7.  On 13 July 1978, the applicant accepted NJP for disobeying a lawful
command from a superior commissioned officer.  His punishment was a
reduction to PFC.

8.  On 11 September 1978, the applicant accepted NJP for possessing
marijuana.  His punishment was a forfeiture of $50.00.

9.  On 23 May 1979, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ by being AWOL from on or about 11 November 1978 through on or about 22
May 1979.

10.  On 23 May 1979, 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 UOTHC discharge, and of the procedures and rights that were
available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

11.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charges 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
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

12.  On 12 June 1979, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
21 June 1979, the applicant was discharged accordingly.  The DD Form 214 he
was issued confirms he was separated under the provisions of chapter 10,
Army Regulation 635-200, for the good of the service in lieu of trial by
court-martial.  This document further shows he completed a total of 2
years,
4 years, 2 months, and 26 days of creditable active military service, and
that he accrued 228 days of time lost due to AWOL.

13.  On 5 June 1981, the Army Discharge Review Board (ADRB), after
carefully considering the applicant's overall record of service, and the
issues he raised, denied the applicant's petition to upgrade his discharge.

14.  The applicant provides three third-party statements from his mother,
his minister, and a close friend.  These individuals all attest to his good
character and post-service conduct.  They also confirm his contributions as
a member of his community and his church.

15.  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 under other than honorable conditions is normally considered
appropriate.

16.  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 contention that he has paid for his poor judgment
during his active duty service, and the supporting statements he provided,
were carefully considered.  However, while his post-service good conduct is
admirable, it is not sufficiently mitigating to warrant granting the
requested relief.

2.  The evidence of record confirms 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.  In
his request for discharge, he admitted guilt to the charge against him, or
of a lesser included offense, that also authorized the imposition of a bad
conduct or dishonorable discharge.  All requirements of law and regulation
were met and that the rights of the applicant were fully protected
throughout the separation process.  Further, the applicant's discharge
accurately reflects his overall record of undistinguished service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies when
his case was last reviewed by the ADRB on 5 June 1981.  As a result, the
time for him to file request for correction of any error or injustice to
this Board expired on 4 June 1984.  He failed to 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

__SAP __  __JKR __  ___DKH _  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.


                                  ____Susan A. Powers_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001744                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/07                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/06/21                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C10                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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