RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 NOVEMBER 2006
      DOCKET NUMBER:  AR20060004738


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Ms. Peguine Taylor                |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states, in effect, that he was not prosecuted, that he
made an error in judgment, and he has not been able to obtain privileges
and he has lost jobs.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and a letter of reference from a
friend, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 February 1982.  The application submitted in this case is
dated 23 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 in the Regular Army on 6 June 1978, for a period
of
3 years.  He served in Germany from December 1978 to December 1981.

4.  On 6 December 1979, he accepted nonjudicial punishment (NJP) under the
provisions of Article 15, Uniform Code of Military Justice (UCMJ), for
being absent without leave (AWOL) from 17 November 1979 to 19 November
1979.  His punishment was reduction to pay grade E-3 (suspended for 90
days), extra duty, and a forfeiture of pay.

5.  On 3 February 1981, the applicant accepted NJP under the provisions of
Article 15, UCMJ, for leaving his appointed place of duty without
authority.  His punishment included reduction to pay grade E-3 (suspended
for 120 days), extra duty, and a forfeiture of pay.

6.  On 17 December 1981, the applicant's commander preferred court-martial
charges against him for rape of a female under the age of 16, two
specifications of sodomy with a child under the age of 16, and two
specifications of lewd and lascivious acts upon a child under the age of
16.

7.  On 22 January 1982, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge for the good of the service,
under Army Regulation 635-200, Chapter 10, in lieu of trial by court-
martial.  He acknowledged that he was guilty of the charges against him,
and that he understood the effects of receiving an under other than
honorable conditions (UOTHC) discharge.

8.  On 22 January 1982, the applicant's unit commander recommended approval
of his request with the issuance of an UOTHC discharge.

9.  On 25 January 1982, after interviewing the applicant, the intermediate
commander recommended approval of his request with the issuance of an UOTHC
discharge.

10.  On 1 February 1982, the appropriate separation authority approved the
applicant's discharge request and directed his reduction to Private E-1,
and the issuance of an UOTHC discharge.

11.  On 12 February 1982, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service in lieu
of trial by court-martial.

12.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service, in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an UOTHC discharge.

13.  On 4 November 1998, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.





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 voluntarily requested separation under Army Regulation
635-200, Chapter 10, for the good of the service, to avoid a trial by court-
martial.

2.  The applicant was advised by his consulting legal counsel of his rights
and the possible effects of a less than honorable discharge.

3.  The applicant's contentions that he was not prosecuted, that he made an
error in judgment, is without merit.  He was not prosecuted for his
misconduct because his request for discharge under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service, was approved.
The fact that he was not prosecuted does not mean that he was not guilty
nor does it justify granting his request for an upgrade.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 4 November 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 3 November 2001.  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

___CG __  ___TR __  ___PT___  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.




                                  _____Curtis Greenway_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004738                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061114                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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