RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 November 2006
      DOCKET NUMBER:  AR20060005837


      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. William Crain                 |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald Lewy                   |     |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 has paid for his indiscretion as a youth.
He contends that he has suffered enough and should not be punished for the
rest of his life.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 August 1982.  The application submitted in this case is dated
7 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 was born on 3 July 1959.  He enlisted on 15 March 1977
for a period of 3 years.  He successfully completed basic combat training
and advanced individual training in military occupational specialty 45P
(Sheridan turret mechanic).

4.  On 13 July 1977, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of a forfeiture
of pay and extra duty.

5.  On 22 July 1977, nonjudicial punishment was imposed against the
applicant for failing to obey a lawful order and using disrespectful
language.  His punishment consisted of a reduction to E-1 (suspended) and
extra duty.

6.  On 4 December 1978, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of extra duty.

7.  On 6 February 1980, in accordance with his pleas, the applicant was
convicted by a special court-martial of three specifications of failure to
repair, for leaving his sentinel post without authority, being disorderly
in command, and two specifications of breaking restriction.  He was
sentenced to be confined at hard labor for 4 months, to forfeit $298 pay
per month for 4 months, and to be reduced to E-1.  On 10 March 1980, the
convening authority approved only so much of the sentence as provided for
confinement at hard labor for 3 months, forfeiture of $228 for 3 months,
and reduction to E-1.

8.  On 23 July 1980, the applicant was tried and convicted by a German
court for committing rape upon a 14 year old female.  He was sentenced to 3
years in prison.

9.  On 18 August 1980, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 14, for civil
conviction.
10.  On 18 August 1980, the applicant waived consideration of his case by a
board of officers, he waived representation by counsel, and he elected not
to submit a statement on his own behalf.

11.  On 21 September 1981, the separation authority approved the
recommendation for discharge and directed the issuance of a discharge under
other than honorable conditions.

12.  The applicant was discharged with a discharge under other than
honorable conditions on 9 August 1982 under the provisions of Army
Regulation 635-200, chapter 14, for misconduct due to civil conviction.  He
had served 3 years, 2 months, and 3 days of total active service with 81
days of lost time due to confinement.

13.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 The regulation states, in pertinent part, that a Soldier may be considered
for discharge when initially convicted by civil authorities, or when action
is taken that is tantamount to a finding of guilty if a punitive discharge
would be authorized for the same or a closely related offense under the
Manual for Court-Martial.  A discharge under other than honorable
conditions is normally appropriate for a Soldier discharged under this
chapter.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant
was 17 years old when he enlisted, he completed basic combat training and
advanced individual training.

2.  The applicant’s record of service included three nonjudicial
punishments, one special court-martial conviction, and 81 days of lost
time.  It appears he also committed a serious civil offense while in the
Army.  As a result, his record of service was not satisfactory.  Therefore,
the applicant's record of service is insufficiently meritorious to warrant
a general discharge.

3.  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.

4.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 9 August 1982; therefore, the time for the
applicant to file a request for correction of any injustice expired on 8
August 1985.  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

WC_____  _AM____  _DL_____  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.



                                  __William Crain_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005837                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061130                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19820809                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 14                   |
|DISCHARGE REASON        |Misconduct due to civil conviction      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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