RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20060003961


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward Montgomery             |     |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 general discharge be upgraded to
honorable.

2.  The applicant states, in effect, that at the time he was 18 years old
and was propositioned by a homosexual in his unit and he did not know how
to handle it.  He states that he told two of his friends, they got drunk,
and then they assaulted the homosexual.  He further states that he was told
he could go to prison or take the general discharge.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 July 1979.  The application submitted in this case is dated
23 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 was born on 30 May 1960.  He enlisted on 29 August 1978
for a period of 4 years.  He successfully completed One Station Unit
Training in military occupational specialty 13B (cannon crewman).

4.  On 7 June 1979, charges were preferred against the applicant for
committing sodomy and oral sodomy with a Soldier, committing aggravated
assault upon a Soldier, and unlawfully striking a Soldier.  Trial by
special court-martial was recommended.

5.  On 21 June 1979, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an other than honorable discharge; that he might be ineligible
for many or all benefits administered by the Veterans Administration; that
he would be deprived of many or all Army benefits; and that he might be
ineligible for many or all benefits as a veteran under both Federal and
State law.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life because of an other than honorable
discharge.  He elected not to make a statement in his own behalf.

6.  On 9 July 1979, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable
conditions on 23 July 1979 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service, in lieu of court-martial.
 He had served 10 months and 25 days of total active service.

8.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7, 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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

11.  Army Regulation 635-200, paragraph 3-7, 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 was 18 years old when he enlisted and he successfully
completed One Station Unit Training.  Therefore, age is not a sufficiently
mitigating factor.

2.  The evidence of record does not support the applicant’s contention that
he was discharged with a general discharge.  Evidence of record shows the
applicant was discharged under other than honorable conditions.

3.  Since the applicant’s record of service included serious offenses that
led to referral of special court-martial charges, his record of service was
not satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant a general or honorable
discharge.

4.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

5.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 23 July 1979; therefore, the time for the
applicant to file a request for correction of any injustice expired on 22
July 1982.  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

MT______  __CD___  _EM____  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.


                                  ____Marla Troup______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003961                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060926                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19790723                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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