RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            03 October 2006
      DOCKET NUMBER:   AR20060003556


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth Wright                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Ms. Sherry Stone                  |     |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 undesirable discharge be upgraded to a
more favorable discharge.

2.  The applicant states that he was a good Soldier, that he had an
honorable discharge on his first enlistment and that the incident in
question occurred during his second enlistment.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 August 1971.  The application submitted in this case is
dated 21 February 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 Newark, New Jersey on 27 December 1968 for a
period of 3 years and training in the automotive maintenance career group.
He successfully completed all of his training at Fort Dix, New Jersey and
remained assigned to Fort Dix as a wheel vehicle repairman.  He was
advanced to the pay grade of E-3 on 16 September 1969.

4.  On 12 December 1969 he was transferred to Fort Meade, Maryland and on
22 January 1970, he was honorably discharged for the purpose of immediate
reenlistment.  He had served 1 year and 25 days of total active service.

5.  On 23 January 1970 he reenlisted for assignment to Okinawa.  He was
transferred to Okinawa on 18 March 1970 and was assigned to a
transportation unit.

6.  On 27 January 1971, the applicant was tried by a special court-martial
of two charges of assaulting two Soldiers with a stick and communicating a
threat to kill another Soldier.  He pled not guilty and was found not
guilty of the charges against him.  He was subsequently reassigned to an
ordnance company.

7.  On 9 July 1971, charges were preferred against him for three
specifications of stealing stereo equipment belonging to three other
Soldiers and for two specifications of breaking and entering the rooms of
two noncommissioned officers, with the intent of larceny.

8.  After consulting with counsel, the applicant submitted a request for
discharge for the good of the service in lieu of trial by court-martial.
In his request he stated that he understood that he may be discharged with
an undesirable discharge, that he understood the prejudice he may be
subjected to as a result of such a discharge, that he understood that he
would be deprived of many or all benefits and that he was not subjected to
coercion by anyone to submit such a request.  He also elected not to submit
a statement in his own behalf.

9.  His chain of command indicated that he presented a definite
disciplinary problem, that he had consistently shown that he is a
substandard Soldier with little motivation, and that he had rejected all
attempts to improve himself.  The chain of command recommended that he be
furnished an Undesirable Discharge Certificate.

10.  On 4 August 1971, the appropriate authority (a major general) approved
his request and directed that he be issued an Undesirable Discharge
Certificate.

11.  Accordingly, he was transferred to Oakland Army Base, California,
where he was discharged under other than honorable conditions on 20 August
1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu
of trial by       court-martial.  He had served 2 years, 7 months, and 24
days of total active service.

12.  On 12 September 1971, he applied to the Army Discharge Review Board
(ADRB) for an upgrade of his discharge.  He was granted a personal
appearance before that board and on 25 August 1972, he appeared before that
board with counsel.  He contended at that time that he was not guilty of
the charges against him and that he was unaware of the consequences of
requesting a discharge under chapter 10.  After hearing testimony in his
case and reviewing the evidence of record, the ADRB determined that his
discharge was both proper and equitable and voted unanimously to deny the
applicant's petition to upgrade his discharge on 25 August 1972.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.  At the time, an undesirable discharge was normally considered
appropriate.

14.  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 voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There were no violations of any
of the applicant’s rights.

2.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

3.  The applicant’s contentions have been noted.  However, they are not
sufficiently mitigating to warrant relief when compared to his
undistinguished record of service and the seriousness of his misconduct.
His service simply does not rise to the level of a fully honorable
discharge.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 25 August 1972.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 24 August 1975.  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

____KW_  ___TR __  ___SS___  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.




                                  _____ Kenneth Wright_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060003556                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1971/08/20                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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