RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20060004036


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |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 discharge under other than
honorable conditions (UOTHC) be upgraded.

2.  The applicant states, in effect, that his administrative discharge
under the provisions of Army Regulation 635-200, chapter 10 for conduct
triable by
court-martial was unjust because he failed to testify against his ex-wife
in her trial for grand larceny and theft.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 November 1980.  The application submitted in this case is
dated 6 March 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 initially enlisted in the Regular Army on 28 March 1969
for a period of three years.  He successfully completed basic combat
training and advanced individual training.  He completed a tour in Vietnam
and was honorably discharged on 2 April 1971 for the purpose of immediate
reenlistment.

4.  The applicant reenlisted on 3 April 1971 for a period of four years.
He was honorably discharged on 11 September 1974 for immediate
reenlistment.

5.  He reenlisted on 12 September 1974 for a period of six years.

6.  He was promoted to staff sergeant on 22 November 1975.

7.  On 25 September 1979, the applicant accepted nonjudicial punishment
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) from 18 September 1979 to 20 September 1979.  His
punishment consisted of a forfeiture of $168.00 for a period of one month.


8.  On 13 August 1980, a bar to reenlistment was imposed against the
applicant for his Article 15, UCMJ.

9.  Charges were preferred against the applicant on 29 August 1980 for
receiving and concealing stolen property in the total value of about
$1,200.00 and for wrongfully concealing knowledge of a felony.

10.  On 6 November 1980, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offense charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Veterans
Affairs (VA) if a discharge UOTHC was issued.  The applicant did not submit
statements in his own behalf.

11.  On 13 November 1980, the separation authority approved the discharge
under the provisions of Army Regulation 635-200, chapter 10 with issuance
of an UOTHC discharge.

12.  The applicant was discharged on 21 November 1980 under the provisions
of Army Regulation 635-200, chapter 10 for the good of the service with a
discharge UOTHC.  He had completed 6 years, 2 months, and 8 days of active
military service during the period under review.  He had 2 days of lost
time due to AWOL.

13.  On 10 September 1982, the Army Discharge Review Board (ADRB), by
unanimous vote, denied the applicant’s request for an upgrade of his
discharge.

14.  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 UOTHC
is normally considered appropriate.

15.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

16.  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.

17.  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 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 was charged with concealing stolen property in the total
value of about $1,200.00 and for wrongfully concealing knowledge of a
felony.

2.  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.  He admitted guilt to the offenses
charged.  There is no indication that the request was made under coercion
or duress.

3.  The applicant’s service record shows he received one Article 15 for
being AWOL for 2 days and a bar to reenlistment during the period under
review.

4.  It appears the chain of command determined that the applicant's overall
military service during his last enlistment did not meet the standards for
a general or honorable discharge as defined in Army Regulation 635-200 and
his service was appropriately characterized as UOTHC.

5.  The applicant's contentions have been noted; however, he has failed to
show through the evidence submitted or the evidence of record that the type
of discharge issued to him was in error or unjust.
6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 September 1982, the date of the
ADRB; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 9 September 1985.  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

JA______  ML______  TR______  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.




                                  James Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004036                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19801121                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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