RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060006875


      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. 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 undesirable discharge be upgraded to
honorable.

2.  The applicant states, in effect, that he is not guilty of the sodomy
charge and that if he was to be found guilty of anything it would be that
he paid a cab fare for a broke, drunk Soldier back to the post.  He
contends that he ran into this drunk Soldier out in town and that the
Soldier asked him if he could ride with him back to the post because he did
not have enough money.  The applicant agreed.  When they arrived back at
the post, the applicant allowed the Soldier to come to his room and play
the guitar for him.  The applicant contends that after the Soldier played a
couple of tunes, he told the Soldier that he had to go and when he returned
from the bathroom the Soldier was lying on his bed naked.  The applicant
threw him and his guitar out and the Soldier pressed sodomy charges against
the applicant.

3.  The applicant also states that he was told the Soldier went to the
hospital and semen was found; however, no tests were conducted on the
applicant because the doctor did not save any evidence.  He contends that
he was placed into pretrial confinement, that he was not afforded the
opportunity to take a polygraph test, and that his military lawyer did not
explain anything to him.  He also states that his lawyer told him he would
be tried by a general court-martial and that he would not lose his Veterans
benefits.  He further states that it has been over 30 years and he has been
punished enough, that he served several tours in Vietnam, and that the
military was downsizing during this time and he believes that is why no one
cared whether or not he got out.

4.  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 12 November 1973.  The application submitted in this case is
dated 29 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 on 23 March 1965 for a period of 3 years.  He
trained as a radio relay and carrier operator.  On 23 March 1966, he was
honorably discharged for immediate reenlistment.  He reenlisted on 24 March
1966 for a period of 3 years.  On 23 January 1969, he was honorably
discharged for immediate reenlistment.  He reenlisted on 24 January 1969
for a period of 6 years.

4.  On 17 January 1970, nonjudicial punishment was imposed against the
applicant for being derelict in the performance of his duties.  His
punishment consisted of a forfeiture of pay.

5.  On 12 August 1970, nonjudicial punishment was imposed against the
applicant for violating a lawful general regulation.  His punishment
consisted of a forfeiture of pay.

6.  On 14 December 1972, nonjudicial punishment was imposed against the
applicant for operating a vehicle in a negligent manner and violating an
existing policy (reported for duty with a strong odor of alcohol on his
breath and subsequently was relieved from duty).  His punishment consisted
of a forfeiture of pay.

7.  On 1 November 1973, charges were preferred against the applicant for
committing sodomy upon a male by force and without consent.

8.  After consulting with counsel, the applicant submitted a request for
discharge for the good of the service in lieu of trial by court-martial
under the provisions of Army Regulation 635-200, chapter 10.  He indicated
in his request that he understood that he could be discharged under other
than honorable conditions and furnished an Undesirable Discharge
Certificate, that he might be deprived of many or all Army benefits, that
he might be ineligible for many or all benefits administered by the
Veterans Administration and that he might be deprived of his rights and
benefits as a veteran under both Federal and State law.  He also
acknowledged that he might encounter substantial prejudice in civilian life
because of an undesirable discharge.  The applicant elected to submit a
statement in his own behalf.  In summary, he stated that due to the nature
of the charge against him and the embarrassment he felt that he should be
granted a discharge.  He stated that he understood that the discharge would
be an undesirable discharge but he did not want to serve in the Armed
Forces any longer.  He further stated that he readily admitted he was not
guilty of the charge against him but he felt that getting out of the Army
would benefit not only him but the Army.

9.  On 8 November 1973, the separation authority approved the applicant’s
request for discharge and directed that he be issued an Undesirable
Discharge Certificate.

10.  Accordingly, the applicant was discharged with an undesirable
discharge on
12 November 1973 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service.  He had served 4 years, 9 months, and 19
days of active service during that enlistment and a total of 8 years, 7
months, and 20 days of creditable active service..

11.  There is no indication in the available records that the applicant
applied to the Army Discharge Review Board for a discharge upgrade within
its 15-year statute of limitations.

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.
At the time, an undesirable discharge was normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

14.  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.  The applicant’s contentions (he is not guilty of the sodomy charge, his
version of the circumstances surrounding the sodomy charge, and his
contentions pertaining to his military counsel) relate to evidentiary and
procedural matters that could have been addressed and conclusively
adjudicated in court-martial proceedings.  However, the applicant
voluntarily requested discharge in lieu of trial by court-martial.

2.  The applicant’s record of service during his last enlistment included
three nonjudicial punishments and a serious offense that led to referral of
a court-martial charge.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant an honorable discharge
or a general discharge.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.

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 12 November 1973; therefore, the time for the
applicant to file a request for correction of any injustice expired on 11
November 1976.  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                 |AR20060006875                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19731112                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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