RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 December 2006
      DOCKET NUMBER:   AR20060007606


      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 Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Michael Flynn                 |     |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 more favorable discharge.

2.  The applicant states that he was never tried for the crimes he was
accused of and he believes that he was treated unfairly at the time the
accusations were made against him.  He also states that he was offered a
discharge and took it without realizing it would affect him later in life.
He continues by stating that he never needed his report of separation (DD
Form 214) until now, when he has been laid off from work and is need of
veteran’s assistance.

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 13 February 1985.  The application submitted in this case is
dated 17 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 5 December 1954.  He enlisted in the Regular
Army with a moral waiver on 15 November 1983 for a period of 4 years,
training in the infantry career management field, assignment to Fort Lewis,
Washington, and a cash enlistment bonus of $5,000.  He completed his one-
station unit training at Fort Benning, Georgia and was transferred to Fort
Lewis on 3 March 1984.

4.  The applicant was counseled by his supervisors on three occasions in
March 1984.  His first counseling was his initial counseling in which he
was informed of his supervisor’s expectations.  The other two counselings
were for repeated demonstrated poor performance and appearance, his
violation of the company policy regarding the possession of hard liquor in
the barracks and his over-indulgence in the use of alcohol.

5.  The applicant underwent a mental status evaluation on 7 November 1984
and the Division Psychiatrist opined that the applicant was apathetic,
immature, inept and unmotivated to become a productive Soldier.  He further
opined that the applicant was mentally responsible, able to distinguish
right from wrong and to adhere to the right and that efforts to further
rehabilitate him were unlikely to produce positive results.

6.  He continued to receive counseling from his chain of command for
essentially the same reasons as well as failure to pay his just debts and
writing bad checks. On 20 December 1984, the commander ordered him into pre-
trial confinement for disobeying a lawful order from a superior
commissioned officer (the commander) and the wrongful possession of a
controlled substance (LSD).

7.  On 11 January 1985, charges were preferred against the applicant for
two specifications of  disobeying a lawful order from a superior
noncommissioned officer (first sergeant), for failure to go to his place of
duty, for being derelict in the performance of duty by failure to report to
guard duty in a sober state, for stealing 24 cans of beer, the property of
the Army and Air Force Exchange and ARA Services, and for being
incapacitated for the proper performance of his duties due to over-
indulgence in intoxicating liquor or drugs.

8.  On 4 February 1985, 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 also
declined the opportunity to submit a statement in his own behalf.

9.  The appropriate authority (a brigadier general) approved his request on
7 February 1985 and directed that he be discharged under other than
honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions
on 13 February 1985, under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had served 1 year, 2
months and 29 days of total active service.

11.  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.

12.  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 extensive repeated misconduct over such a short
period of service.  His service simply does not rise to the level of
honorable conditions.



5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 February 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 12 February 1988.  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

___JS___  ___LE___  ___MF __  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 Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007606                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061214                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1985/02/13                              |
|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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