RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 FEBRUARY 2007
      DOCKET NUMBER:  AR20060005417


      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. Gerard W. Schwartz            |     |Director             |
|     |                                  |     |Analyst              |

      The following members, a quorum, were present:

|     |                                  |     |Chairperson          |
|     |                                  |     |Member               |
|     |                                  |     |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.

2.  The applicant states that he was not provided adequate counsel at the
time of his court-martial, and that he was in Germany with no family
support.  He has since been diagnosed with Bipolar Disorder which he
believes existed during his time in the military and affected his decision-
making which led to his court-martial.

3.  The applicant further states that he has found the Lord in his life
which has changed his perspective concerning the things that happened to
him in the military

4.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and copies of his medical records,
in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
3 May 1982.  The application submitted in this case was received on 13
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.  The applicant enlisted in the Regular Army on 14 November 1979, for a
period of 3 years.  He served in Germany from 25 July 1981 to 2 May 1982.

4.  On 24 March 1982, his commander initiated a bar to reenlistment on him.
 His commander sighted numerous counseling statements concerning his
attitude problem, his disobeying several lawful orders, as well as his
failure to repair, his personal standards, his uniform standards and his
missing formation.  The bar to reenlistment was approved on 30 March 1982.
5.  The applicant's court-martial charge sheet is not in the available
records.  However on 6 April 1982, after consulting with legal counsel, he
voluntarily submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, Chapter 10.  He stated
that he understood he could request a discharge for the good of the service
because of charges preferred against him under the Uniform Code of Military
Justice (UCMJ), under Article 128 (assault) (two specifications), which
authorized the imposition of a bad conduct or dishonorable discharge.  He
stated that he was guilty of the charges against him, and did not desire
further rehabilitation because he had no desire to perform further military
service.  He also acknowledged that he understood the effects of receiving
an under other than honorable conditions characterization of service, and
that he may be deprived of many or all Army benefits and that he may be
ineligible for many or all benefits administered by the Veterans
Administration, and that he may be deprived of his rights and benefits as a
Veteran under both Federal and State law.

6.  On 8 April 1982, his unit and intermediate commanders recommended
approval of his request with the issuance of an under other than honorable
conditions (UOTHC) discharge.

7.  On 12 April 1982, his brigade commander recommended approval of his
request with the issuance of an UOTHC discharge.

8.  On 16 April 1982, the appropriate separation authority approved his
discharge request and directed his reduction to the lowest enlisted grade
and the issuance of an UOTHC discharge.

9.  The applicant provided a portion of his 19 April 1982, medical
examination which shows he was qualified for discharge.

10.  There is no evidence in the applicant's available record, nor is there
documentation in the records provided by the applicant, that shows he had
been diagnosed with bipolar disorder at the time of his discharge or at the
present.

11.  The applicant was discharged on 3 May 1982 under the provisions of
Army Regulation 635-200, Chapter 10, administrative discharge, and conduct
triable by court-martial.




12.  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 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.

13.  On 9 May 1994, 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 given adequate counsel is
without merit.  Prior to submitting his discharge request he acknowledged
that he had been afforded the opportunity to consult with appointed legal
counsel and had been fully advised of the nature of his rights under the
UCMJ, and the elements of the offenses with which he had been charged.  The
applicant did not go to trial 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.

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 9 May 1994.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 8 May 1997.  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

___TK  __  __LB ___  __LD____  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.



                                  ________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060005417                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070227                                |
|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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