RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060004788


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |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, under
honorable conditions, be upgraded to honorable.

2.  The applicant states, that his discharge was not documented or his
discharge was not properly warranted under the conditions that he was
disabled.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 April 1978, the date of his discharge.  The application
submitted in this case is dated 16 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's record shows he enlisted in the Regular Army on 22 June
1977.  The applicant successfully completed basic combat training and
advanced individual training at Fort Gordon, Georgia.  On completion of his
one station unit training (OSUT), he was awarded the military occupational
specialty (MOS), 36K, Tactical Wire Operations Specialist.  He was advanced
to pay grade E-2 on 22 December 1977.  He served in Korea from 13 December
1977 to 25 April 1978.

4.  On 12 September 1977, the applicant was punished under Article 15,
Uniform Code of Military Justice (UCMJ), for failing to go to his appointed
place of duty.  His punishment was forfeiture of pay and 14 days
restriction and extra duty.

5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification
Record), shows that he was AWOL from 16 to 19 February 1978 (4 days) and
from 21 to 27 February 1978 (7 days).

6.  On 28 March 1978, he was punished under Article 15, for larceny and
assault. His punishment consisted of a forfeiture of pay.

7.  Charges were preferred against the applicant on 11 April 1978, for
disorderly conduct and assault on three individuals who were performing
their duties.

8.  On 12 April 1978, he consulted with counsel and voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.  In doing so,
he acknowledged that he might encounter substantial prejudice in civilian
life and might be ineligible for many or all benefits administered by the
Veterans Administration (VA) [now the Department of Veterans Affairs] if a
discharge characterized as under other than honorable conditions (UOTHC)
were issued.  He waived his rights and elected not to submit a statement in
his own behalf.

9.  On 17 April 1978, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

10.  The applicant was discharged in the rank/pay grade, Private/E-1, on
26 April 1978.  He had a total of 9 months and 24 days of creditable
service and 11 days of lost time due to AWOL.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 30 May 1979.  The ADRB voted to grant relief in
the form of an upgrade of the characterization of his service to general,
under honorable condition, on 18 August 1980.

12.  The applicant reapplied to the Army Discharge Review Board (ADRB) for
an upgrade of his discharge on 10 March 1981.  On 12 August 1982, the ADRB
denied the applicant’s petition to upgrade his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for 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, at any
time after the charges have been preferred, submit a request for discharge
for the good of the service
in lieu of trial by court-martial.  A discharge under other than honorable
conditions is normally considered appropriate.  However, at the time of the
applicant's separation the regulation provided for the issuance of an
undesirable
discharge.

14.  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, 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.

15.  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 is no indication that the
request was made under coercion or duress.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The evidence shows that the applicant's discharge characterized as
UOTHC was upgraded to general, under honorable conditions, on 14 August
1980.
However, he is now requesting that his general discharge be upgraded to
honorable.






4.  The applicant alleges that his discharge was not documented or was not
properly warranted under the conditions that he was disabled.  However,
there is no evidence in the applicant’s records, and the applicant has
provided none, to show that he was being treated for a medical or physical
disability during the processing of his discharge proceedings.

5.  There is no evidence in the applicant's records, and the applicant has
provided no evidence, to show that his discharge was unjust.  He also has
not provided evidence sufficient to mitigate the character of his
discharge.

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

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 August 1982. 
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 11 August 1985.  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

_PM____  ___DRG_  ___RSV_   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.




                                  ____Patrick H. McGann, Jr._
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004788                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19790218                                |
|DISCHARGE AUTHORITY     |AR  635-200, chap 10                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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