RECORD OF PROCEEDINGS


      IN THE CASE OF:        .


      BOARD DATE:            09 November 2006
      DOCKET NUMBER:   AR20060006153


      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. Margaret Patterson            |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Ms. Ernestine Fields              |     |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 undesirable discharged be upgraded to
fully honorable.

2.  The applicant states he did his best as a Soldier and should be granted
an honorable discharge.  He further states that he knows he was involved in
a little trouble and he regrets his actions.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 October 1974.  The application submitted in this case is
dated 18 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 Jacksonville, Florida, on 28 March 1973 for a period of
3 years, training as a movement control specialist and assignment to Fort
Campbell, Kentucky with the 101st Airborne Division (Airmobile).  He
completed his basic combat training at Fort Knox, Kentucky, his advanced
individual training at Fort Eustis, Virginia, and was transferred to Fort
Campbell on 3 August 1973 in the pay grade of E-3.

4.  He remained at Fort Campbell until 29 January 1974, when he was
transferred to Korea and was assigned to the 25th Transportation Center in
Seoul, with duty at the Transportation Movement Officer (TMO) in Taegu.  He
was advanced to the pay grade of E-4 on 1 May 1974.

5.  On 30 July 1974, nonjudicial punishment (NJP) was imposed against the
applicant for leaving the scene of an accident in which he was involved and
for the unlawful possession and concealment of a straight razor.  His
punishment consisted of a reduction to the pay grade of E-3.
6.  On 14 August 1974, charges were preferred against the applicant for six
specifications of violating a lawful general regulation by over purchasing
his limit of controlled items (six electric blenders, two electric rice
cookers and four electric coffee pots).  An additional specification was
preferred against him on 17 August 1974 for over purchasing eight bottles
of liquor (he was authorized five bottles and purchased 13 bottles in 1
month).

7.   On 13 September 1974, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service in lieu of
trial by court-martial.  In his request he stated that he understood that
he may be discharged with an undesirable discharge, that he understood the
prejudice he may be subjected to as a result of such a discharge, that he
understood that he would be deprived of many or all benefits and that he
was not subjected to coercion by anyone to submit such a request.  He also
elected not to submit a statement in his own behalf.

8.  On 19 September 1974, the appropriate authority (a brigadier general)
approved his request and directed that he be issued an Undesirable
Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on
4 October 1974, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 1 year, 6 months and
7 days of total active service.

10.  On 5 October 1980, he applied to the Army Discharge Review Board
(ADRB) contending that what he did was not such a bad thing that he should
have received an undesirable discharge.  He contended that he should not be
penalized for a few blunders because he was otherwise a good Soldier. The
ADRB opined that the charges against him were indicative that he was
dealing in the black market and that he had been previously reduced in
grade. On 26 May 1981, the ADRB denied the applicant's petition to upgrade
his discharge.

11.  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 were no violations of any
of the applicant’s rights.

2.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

3.  The applicant’s contentions have been noted.  However, they are not
sufficiently mitigating to warrant relief when compared to his
undistinguished 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.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 26 May 1981.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 25 May 1984.  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

__MP____  ___RR__  ___EF___  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.




                                  ___Margaret Patterson___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006153                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061109                                |
|TYPE OF DISCHARGE       |(UD)                                    |
|DATE OF DISCHARGE       |1974/10/04                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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