RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 NOVEMBER 2006
      DOCKET NUMBER:  AR20060002583


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick McGann                |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. David Haasenritter            |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he is asking the Board for mercy as they
review his case.  He realizes that his foolish actions brought shame and
dishonor to the military, his family and country.  He is sorry for allowing
himself to be put in a position where his integrity was in question.  He
had no business going to a married man's house while he wasn’t at home.  He
acknowledges that he was wrong and takes full responsibility for his
actions.  He is now standing on his own feet, on solid ground, hardship has
been a good teacher, and he has made wise use of his mistakes.

3.  The applicant provides documents concerning his court-martial in
support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 April 1981.  The application submitted in this case is
dated
29 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 6 December 1978, for a
period of 3 years.  He served in Germany from 20 May 1979 to 14 May 1980.

4.  On 15 May 1980, he was convicted by a general court-martial, contrary
to his pleas, of rape, assault consummated by battery, and of communicating
a threat.  He was sentenced to be dishonorably discharged from the service,
to be confined at hard labor for 12 years, forfeiture of all pay and
allowances, and to be reduced to Private E-1.

5.   The findings and sentence were approved on 16 August 1980, and
affirmed by the United States Army Court of Military Review on 26 November
1980.
6.  On 9 December 1980, the applicant acknowledged receipt of the decision
of the United States Court of Military Review, and was advised of his right
to petition the Court of Military Appeals for a grant of review with
respect to any matter of law, within thirty days.  The applicant filed an
appeal with the United States Court of Military Appeals.  On 2 March 1981,
the United States Court of Military Appeals denied the applicant's petition
of review.

7.  General Court-Martial Order Number 205, Headquarters, United States
Disciplinary Barracks, Fort Leavenworth, Kansas, dated 20 March 1981,
directed the execution of the dishonorable discharge, forfeiture of all pay
and allowances becoming due on and after the date of the convening
authority’s action, confinement at hard labor for 12 years, and reduction
to Private E-1.

8.  On 13 April 1981, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 11, paragraph 11-1, with a dishonorable
discharge. His DD Form 214 indicates he had 1 year, 5 months, and 9 days of
active service and 334 days of lost time.

9.  Title 10, United States Code, Section 1552, as amended does not permit
any redress by this Board of the finality of a court-martial conviction and
empowers the Board to only change a discharge if clemency is determined to
be appropriate.

10.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 11, paragraph
11-1, provided that a dishonorable discharge would  be issued pursuant to
an approved sentence of a general or special court-martial, after
completion of the appellate review, and the sentence having been affirmed
and ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The fact that the applicant has now learned from his mistakes and is
sorry for what he did, is no justification for granting his request.  The
applicant provides no evidence to show that his post-confinement conduct
has been so meritorious as to warrant an upgrade of his discharge as a
matter of equity.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 April 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         12 April 1984.  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

___PM __  ___RS __  ___DH __  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.



                                  _____Patrick McGann_______
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20060002583                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061107                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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