RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20060001793


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 be upgraded.

2.  The applicant states the weapons involved were not captured but just
some that had been picked up as souvenirs.

3.  The applicant provides no additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 August 1991, the date of his discharge.  The
application submitted in this case is dated 25 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 records show the applicant entered the Army National Guard in 1965.
He served actively in a Guard unit until called to active duty on
19 November 1990 in support of Operation Desert Shield/Desert Storm.

4.  On 25 June 1991, while serving in Southwest Asia, the applicant was
charged with conspiring to sell and selling captured enemy equipment of a
value of more than $100.00 and theft of military property, $100.00 in
currency.

5.  In his statement to the Criminal Investigative Division (CID) he stated
that Second Lieutenant (2LT) H____ told him to take some weapons (12 -
Iraqi AK-47 automatic rifles) from the 2LT’s tent and sell them.  The
applicant complied with these instructions.  He and two other Soldiers
drove to a town approximately 35 miles away where they sold the rifles for
$1,210.00.  The money was given to the 2LT who in turn gave the applicant
$100.00 for himself and a second $100.00 for one of the other Soldiers.  In
his statement he indicated he knew that selling the rifles was wrong.

6.  After consulting with counsel and being advised of his rights and
options, the applicant submitted a formal request for discharge for the
good of the service in lieu of trial by court-martial under the provisions
of Army Regulation 635-200, chapter 10.  He acknowledged he had been
advised of and understood his rights under the Uniform Code of Military
Justice, that he could receive an under other than honorable conditions
discharge (UOTHC) which would deprive him of many or all of his benefits as
a veteran, that he could expect to experience substantial prejudice in
civilian life if he received an UOTHC discharge, and that there is no
automatic upgrading or review of a less than honorable discharge.

7.  The discharge authority approved the request and directed that the
applicant be reduced to the lowest enlisted grade and discharged with an
UOTHC.

8.  On 8 August 1991 the applicant was discharged from active duty under
Army Regulation 635-200, chapter 10, for the good of the service in lieu of
trial by court-martial with an UOTHC.  He had 8 months and 8 days of
creditable service for this period with 1 year, 1 month, and 17 days of
prior active duty and 17 years and 7 months of inactive service.

9.  Headquarters, Tennessee Army National Guard (TNARNG) Orders 2219-52,
dated 7 November 1991 discharged the applicant from the TNARNG and the
Reserve of the Army, effective 8 August 1991, with a UOTHC.

10.  On 30 December 1996 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

11.  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.
A discharge under other than honorable conditions is normally considered
appropriate.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  The
maximum punishment for offenses under Article 103, for selling captured or
abandoned enemy property of a value of more than $500.00 or any firearm or
explosive is a DD, forfeiture of all pay and allowances, and confinement
for
5 years.

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
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 knew that the weapons were either captured or abandoned
enemy property.  He admitted he knew, before the fact, that selling these
weapons was wrong.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  The fact that the applicant was permitted to receive an
administrative discharge in lieu of trial by court-martial recognizes his
17 years of honorable National Guard service.

3.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of the discharge is commensurate
with his overall record.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 30 December 1996.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 29 December 1999.  However, 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

__ALR___  __QAS__  __LMB__  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.




                                  ___Allen L. Raub______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060001793                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19910808YYYYMMDD                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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