RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 November 2006
      DOCKET NUMBER:   AR20060006615


      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:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Susan Powers                  |     |Member               |
|     |Mr. Dennis Phillips               |     |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 an honorable or general discharge.

2.  The applicant states that at the time, he was under a great deal of
emotional distress from going through a painful divorce.  He further states
that he served faithfully for 4 1/2 good years and received the Good
Conduct Medal.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 May 1980.  The application submitted in this case is dated 26
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 was born on 14 February 1953 and enlisted in Nashville, Tennessee,
on 31 July 1975 for a period of 3 years, training as a clerk typist and
assignment to Fort Leonard Wood, Missouri.

4.  He completed all of his training at Fort Jackson, South Carolina, and
was transferred to Fort Leonard Wood for duty as a mail clerk.  He was
advanced to the pay grade of E-4 on 1 November 1976.

5.  On 29 March 1977, he was transferred to Frankfurt, Germany.  He
extended his enlistment on 11 July 1978 for a period of 20 months to
complete a          with-dependents tour and his family arrived in July
1978.  He was awarded the Good Conduct Medal on 23 March 1979.

6.  On 22 June 1979, nonjudicial punishment (NJP) was imposed against him
for failure to go to his place of duty.  His punishment consisted of a
forfeiture of pay (suspended for 2 months) and extra duty.

7.  On 3 July 1979, NJP was imposed against him for the wrongful possession
of three hypodermic needles, three hypodermic syringes, residue of
tetrahydrocannabinois and one-half a tablet of methaqualone.  His
punishment consisted of a reduction to the pay grade of E-3 (suspended
until 3 November 1979), a forfeiture of pay and extra duty.  On 21
September 1979, the commander vacated the suspended punishment and the
applicant was reduced to the pay grade of E-3.

8.  On 23 October 1979, charges were preferred against the applicant for
violating a lawful general order by entering an off-limits area, 11
specifications of unlawfully obtaining services with intent to defraud by
riding German streetcars without obtaining a ticket, assaulting his wife,
with intent to commit murder, by smothering her with a pillow, choking her
with his hands and attempting to throw her from a second story window, and
for committing assault on a military policeman by striking at him with a
knife and the blunt end of a mop.

9.  The applicant’s family was returned to the United States under an early
return of dependents requested by the applicant’s wife.

10.  On 8 April 1980, 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 asserted that he was sorry for the
trouble he had caused, that he had stopped drinking, except socially, and
that he had reconciled with his wife.  He went on to state that his family
was excited about his coming home, that he was going to enroll in college
when he returned , that his father had a job lined up for him with the Post
Office and he requested that he be given a general discharge to assure him
veterans benefits and a better life for his family.

11.  The appropriate authority (a lieutenant general) approved his request
on 14 April 1990 and directed that he be discharged under other than
honorable conditions.

12.  Accordingly, he was discharged under other than honorable conditions
on 3 May 1980, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 4 years, 9 months and 3
days of total active service.

13.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

14.  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 was then and still is
normally considered appropriate.

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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  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.  In doing so he admitted guilt to the
charges against him.

4.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to the seriousness
of his offenses and his overall misconduct.

5.  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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 May 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 May 1983.  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

__JM____  ___SP __  ___DP __  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.




                                  _______John Meixell_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006615                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1980/05/03                              |
|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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