RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            05 December 2006
      DOCKET NUMBER:   R20060006932


      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. Linda Simmons                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Donald Steenfott              |     |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 or honorable discharge.

2.  The applicant states that mental health stressors were incurred prior
to military service that were aggravated during active duty and resulted in
erratic behavior that was basically untreated by the military and he now
desires to seek treatment to improve his condition.

3.  The applicant provides a copy of an independent psychiatric evaluation,
the results of his application to the Army Discharge Review Board (ADRB),
and copies of documents from his military records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 July 1979.  The application submitted in this case is dated
12 May 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 17 February 1957 and enlisted in Raleigh,
North Carolina, on 24 February 1977 for a period of 4 years and training as
a Hercules Missile Crewman.  At the time of his enlistment he indicated
that his mother was deceased, that his father resided in Parkton, North
Carolina, and that he had resided at his father’s address since 1973.  He
continued to list his father at the same address throughout his entire
period of service and indicated no siblings.

4.  He completed his basic training at Fort Leonard Wood, Missouri and his
advanced individual training (AIT) at Fort Bliss, Texas.  Upon completion
of his AIT he was transferred to Alaska on 24 July 1977.  He was initially
assigned to an air defense battery at Fort Richardson and was advanced to
the pay grade of E-3 on 1 May 1978.  On 19 May 1978, he was transferred to
an aviation company at Fort Wainwright for duty as a wheel vehicle
mechanic.  He received a Department of the Army reclassification to that
military occupational specialty on 24 May 1978.

5.  On 20 February 1979, the applicant was arrested by civil authorities at
Fort Wainwright for larceny of property over $50.00.  Bail was set at
$250.00 and the applicant posted bail on 28 February 1979.

6.  On 16 April 1979, nonjudicial punishment was imposed against him for
being drunk on duty.  His punishment consisted of a reduction to the pay
grade of E-2 and a forfeiture of pay (suspended for 1 month).  On 1 May
1979, the commander vacated the suspended portion of his punishment.

7.  The applicant was tried by civil authorities and was convicted pursuant
to his plea of guilty on 20 April 1979.  He was sentenced to 30 days
imprisonment with 21 days being suspended on the condition of good behavior
for 6 months.

8.  The applicant underwent a mental status evaluation and was
psychiatrically cleared for administrative separation.

9.  On 3 May 1979, the applicant’s commander notified him that he was
recommending that he be separated from the service under the provisions of
Army Regulation 635-200, paragraph 14-12(a) for misconduct -  conviction by
civil authorities.  The commander also indicated that the applicant had
failed to respond to counseling or take any positive steps to alter his
substandard performance.  He displayed apathy towards the Army, his job,
and life in the military.  During each counseling session the applicant
expressed an adamant desire to be discharged and he made no effort to
rehabilitate himself.

10.  On 23 May 1979, after consulting with defense counsel, the applicant
waived all of his rights and declined to submit a statement in his own
behalf.

11.  The appropriate authority (a brigadier general) approved the
recommendation for discharge on 22 June 1979 and directed that he be
discharged under other than honorable conditions.

12.  Accordingly, he was discharged under other than honorable conditions
on 3 July 1979, under the provisions of Army Regulation 635-200, chapter 14
for misconduct – conviction by civil authorities.  He had served 2 years, 4
months, and 2 days of total active service and had 8 days of lost time due
to confinement by civil authorities.

13.  A review of his records also reveals that the applicant’s check
cashing privileges were suspended for writing bad checks at the post
exchange and the commander received letters of indebtedness from creditors
claiming that the applicant was not paying his debts.

14.  His records also show that he was enrolled in the Alcohol Drug Abuse
Prevention and Control Program (ADAPCP) on 20 March 1979 for the use of
drugs and alcohol.  On 3 April 1980, he authorized the release of that
information to the State of Alaska, Division of Corrections, Pre-Sentence
Investigations Unit.

 15.  On 14 July 1982 the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

16.  The independent psychiatric report submitted by the applicant
indicates that the applicant was being diagnosed for the purpose of
obtaining workmen’s compensation benefits and he indicated that he suffered
from post-traumatic stress disorder which began when he witnessed his
father shooting his mother and then himself when he was 8 years of age.  He
also indicated to the psychiatrist that he had been incarcerated in 1992
after being charged by his sister of raping and kidnapping his sister’s 8-
year old daughter.  He claimed that when his father shot his mother, he and
his brother were put in an orphanage where they were adopted by a man who
sexually abused them until he left home at the age of 15.  He also stated
that he was denied an inheritance of land by his four sisters and has had
multiple situational crises and disappointments which have contributed to
his depression over the years.

17.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
included minor infractions, a pattern of misconduct, involvement in
frequent incidents of a discreditable nature with civil and military
authorities, conviction by civil authorities and commission of a serious
offense.  A discharge under other than honorable conditions was then and
still is normally considered appropriate.

18.  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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
misconduct and overall record of undistinguished service.

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 14 July 1982.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 13 July 1985.  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

__LS____  __PM ___  __DS___  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.




                                  _____ Linda Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006932                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061205                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1979/07/03                              |
|DISCHARGE AUTHORITY     |AR635-200/ch14 . . . . .                |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |627/a61.00                              |
|1.144.6100              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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