RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 November 2006
      DOCKET NUMBER:  AR20060002800


      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             |
|     |Mrs. Phyllis M. Perkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 discharge be upgraded.

2.  The applicant states, in effect, that he is older, wiser and a law
abiding citizen.

3. The applicant further states that veteran's benefits would help him.

4.  The applicant provides no additional documenting evidence in support of
this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 15 March 1978, the date of his discharge.  The application
submitted in this case is dated 9 February 2005.

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 he enlisted in the Regular Army on
28 November 1976, for a period of three years.  He was trained in, awarded,
and served in military occupational specialty (MOS) 13B10 (Cannon Crewman),
and
the highest rank he attained while serving on active duty was private/pay
grade E-2.

4.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for
being disrespectful in language to his non commissioned officer on 8
December 1977, and being disrespectful towards his superior commissioned
officer on 20 December 1977.




5.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel
Qualification Record) shows the applicant was absent without leave (AWOL)
during the period 3 January 1978 through 14 January 1978.

6.  On 17 January 1978, charges were preferred against the applicant for
being AWOL during the period 3 January 1978 through 15 January 1978,
behaving with disrespect towards his superior commissioned officer on
16 January 1978, and disobeying a lawful command on 16 January 1978.

7.  On 1 February 1978, the applicant submitted a request for discharge for
the good of the service under the provisions Army Regulation 635-200
(Active Duty Enlisted Administrative Separations), Chapter 10.  In his
request for discharge, the applicant indicated that he had not been coerced
into requesting discharge and had been advised of the implications that
were attached to the request.

8.  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 under
other than honorable conditions discharge, and of the procedures and rights
that were available to him.  He further acknowledged that 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.  The applicant elected not to submit a statement on his own
behalf.

9.  On 23 February 1978, the separation authority approved the applicant's
request for discharge and directed that he receive an Under Other than
Honorable Discharge Certificate.  On 3 March 1978, the applicant was
discharged accordingly.  The DD Form 214 (Report of Separation from Active
Duty) he was issued confirms he completed a total of 1 year, 2 months, and
28 days of creditable active military service and that he accrued 12 days
of time lost due to AWOL.

10.  On 29 July 1982, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.  After being represented by
counsel on 6 May 1983, the ADRB denied the applicant's second request for
an upgrade of his discharge.




11.  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.

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

13.  Army Regulation 635-200, paragraph 3-7a, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, 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.







DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions
discharge should be upgraded.

2.  The applicant's record shows he was charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  After
consulting with defense counsel, he voluntarily requested discharge from
the Army in lieu of trial by court-martial.  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.

3.  Based on the seriousness of this indiscipline, the applicant's service
clearly does not meet the standards of acceptable conduct and performance
of duty for Army personnel.  This misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for
the purpose of making the applicant eligible for benefits.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 May 1983.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 5 May 1986.  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

_AM____   __DLL__  _WFC____  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.




                                     __William F. Crain_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002800                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061130                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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