RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            26 October 2006
      DOCKET NUMBER:   AR20060005310


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla Troup                   |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John Heck                     |     |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 discharge under other than honorable
conditions be upgraded to a general discharge.

2.  The applicant states that he was never convicted of a crime.  He was
only accused and after serving 303 days in Fort Leavenworth, he was given
all of his back pay and credit for the time he served.  He goes on to state
that if his conduct was bad, why was he given all of his back pay and
credit for the time he served?  He continues by stating that when he
returned to Fort Leonard Wood he was asked if he wanted to stay in or get
out and he chose to get out because it was the best choice at the time.  He
also states that he does not deserve a discharge under other than honorable
conditions because he was never convicted of a crime.

3.  The applicant provides a copy of his report of separation (DD Form 214)
with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 March 1978.  The application submitted in this case is dated
4 April 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.  He enlisted in the United States Army Reserve (USAR) in Chicago,
Illinois on 6 July 1976 for a period of 6 years.  He was ordered to initial
active duty for training on 8 August 1976 and was transferred to Fort
Gordon, Georgia, to undergo his training.  He completed his basic combat
training and remained at Fort Gordon to undergo his advanced individual
training (AIT) ; however, he did not successfully complete that course
(field radio repairman) and was transferred to Fort Leonard Wood, Missouri,
to undergo training as a power generation and wheeled vehicle mechanic.

4.  On 6 December 1976, nonjudicial punishment (NJP) was imposed against
him for disobeying a lawful order by possessing beer in the barracks.  His
punishment consisted of a forfeiture of pay (suspended for 30 days) and
extra duty.

5.  On 14 December 1976, NJP was imposed against him for the wrongful
possession of marijuana.  His punishment consisted of a forfeiture of pay
and correctional custody for 21 days.

6.  He was subsequently transferred to another course for training as a
motor transport operator on 21 January 1977.

7.  On 23 March 1977, he was convicted, pursuant to his plea,  by a general
court-martial of intent to commit rape on a female in the post bowling
alley by committing an assault on her by striking her on the face, throwing
her on the floor and dragging her by her legs.  He was sentenced to
confinement at hard labor for a period of 3 years, forfeiture of all pay
and allowances and a dishonorable discharge.  However, the convening
authority approved only so much of the sentence as provided for confinement
at hard labor for 9 months, forfeiture of all pay and allowances and a BCD.
 The applicant was transferred to Fort Leavenworth to serve his
confinement.

8.  On 14 September 1977, the United States Army Court of Military Review
(USACMR) affirmed the findings and sentence as approved by the convening
authority.

9.  On 25 November 1977, the applicant was restored to duty pending
completion of his appellate review.  He was subsequently returned to Fort
Leonard Wood.

10.  On 10 February 1978, the United States Court of Military Appeals
reversed the findings of the USACMR and set aside the findings and sentence
of the court-martial.  That court indicated that a rehearing may be ordered
on the findings and sentence.

11.  On 17 March 1978, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he understood the charges
that had been preferred against him, that he was making the request of his
own free will, without coercion from anyone and that he was aware of the
implications attached to his request.  He also admitted that he was guilty
of the charges against him or of lesser included offenses which authorized
the imposition of a bad conduct or dishonorable discharge.  He acknowledged
that he understood that he could receive a discharge under other than
honorable conditions and that he might be deprived of all benefits as a
result of such a discharge.  He further elected to submit a statement in
his own behalf whereas he stated that he knew he made a serious mistake and
he regretted it a great deal.  He also stated that he had paid a heavy
price for his mistake and desired a good discharge in order to make a clean
start in civilian life.

12.  The appropriate authority (a major general) approved his request on
23 March 1978 and directed that he be discharged under other than honorable
conditions.

13.  On 24 March 1978, orders were published which dismissed all charges
and specifications and restored all rights, privileges and property that he
had been deprived of by virtue of the findings of guilty and the sentence
so set aside.

14.  Accordingly, he was discharged under other than honorable conditions
on 29 March 1978, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 9 months and 23 days
of total active service.

15.  On 18 June 1982, the applicant applied to the Army Discharge Review
Board (ADRB) for an upgrade of his discharge to fully honorable because he
was intoxicated at the time he committed the offense and he had been a good
citizen since his discharge.  The ADRB found that his discharge was both
proper and equitable given the circumstances in his case and voted
unanimously to deny his request on 7 April 1983.

16.  Meanwhile, on 6 January 1983, the applicant authorized officials at
the Morgan County, Illinois Probation Office authority to request copies of
his military records from the National Personnel Records Center.

17.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

18.  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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
overall record of service and the seriousness of his misconduct.  His
service simply does not rise to the level of a discharge under honorable
conditions.

4.  The applicant pled guilty to the charges against him at his trial by
general court-martial and during the appeals process was granted a
rehearing of the findings and sentence only.  He voluntarily submitted his
request for discharge in lieu of trial by court-martial (rehearing) and
again admitted guilt to the charges against him.  Furthermore, he admitted
to the ADRB that intoxication was the cause of his actions.  While he may
not have finally been convicted of the crime for which he was accused,
there is little doubt of his guilt in the matter or that his discharge does
not warrant an upgrade.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 7 April 1983.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 6 April 1986.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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___  ___RR___  ___JH  __  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                 |AR20060005310                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061026                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1978/03/29                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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