RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 October 2006
      DOCKET NUMBER:  AR20060004541


      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:

|     |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, in effect, that his general discharge be
upgraded to honorable.

2.  The applicant states that he was forced to make up a story or go to
jail and those were his only two options.  He contends that his captain,
first sergeant, and his immediate supervisor were all present at his court-
martial, happy and joking.  He states that everyone knew he was innocent
and that he was a good Soldier.
He also contends that it has been 25 years, that he has been a mentor to
kids, that he is a role model in his community, and that he has never been
arrested or been to jail.

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 28 January 1986.  The application submitted in this case is
dated March 2006, and was received for processing on 30 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 enlisted on 19 February 1980 for a period of 3 years.  He
served as a combat signaler and was honorably discharged on 14 April 1983
for immediate reenlistment.  He reenlisted on 15 April 1983 for a period of
3 years.

4.  The applicant’s charge sheet is not available.  However, the
applicant’s request for discharge shows that on or about July and August
1985 the applicant was charged with distribution of marijuana.

5.  On 25 November 1985, 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 18 December 1985, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

7.  Although a discharge under other than honorable conditions was
approved,  the applicant’s DD Form 214 shows that he was discharged under
honorable conditions (a general discharge) on 28 January 1986 under the
provisions of Army Regulation 635-200, chapter 10, for the good of the
service, in lieu of court-martial.  He had served a total of 5 years, 11
months, and 10 days of total active service.

8.  On 24 June 1998, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an honorable discharge.

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 3-7a, 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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

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 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's contention that he was forced to make up a story or go
to jail relates to evidentiary and procedural matters that could have been
addressed and conclusively adjudicated in court-martial proceedings or the
appellate process.  However, the applicant voluntarily requested discharge
in lieu of trial by court-martial.

2.  Good post service conduct alone is not a basis for upgrading a
discharge.

3.  Since the applicant’s record of service included a serious drug offense
that led to referral of a court-martial charge and there is no evidence to
show he was “forced to make up a story”, his record of service 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 an 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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 24 June 1998.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 23 June 2001.  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 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                 |AR20060004541                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19860128                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service, in lieu of |
|                        |court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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