RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 April 2007
      DOCKET NUMBER:  AR20060014724


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Edward Montgomery             |     |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 a general discharge.

2.  The applicant states that he suffered a head injury in 1979 prior to
enlisting in the Army, which resulted in impaired cognitive function and a
loss of memory.  He states that at the time, he did not know what was
causing him problems or why he was having problems.  He states that he
believes that his head injury was the cause of his actions, which led to a
discharge under other than honorable conditions.  He states that he is not
making excuses for his action; however, he is requesting an upgrade of his
discharge.

3.  The applicant provides a Total and Permanent Disability Cancellation
Request; a Certifications of Disability; a letter from a doctor dated 11
December 2002, a Loan Discharge Application; documentation showing that he
was excused from jury duty; a portion of orders number 208 dated 27 July
1982; a copy of his Certificate of Release or Discharge (DD Form 214); and
a portion of a Report of Medical History.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 July 1982.  The application submitted in this case is
dated 2 October 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.  On 28 October 1981, he enlisted in the Army at Fort Dix, New Jersey,
for 4 years, in the pay grade of E-1.  He successfully completed his
training as a track vehicle repairer.



4.  On 17 December 1981, nonjudicial punishment was imposed against the
applicant for leaving his appointed place of duty.  His punishment
consisted of a forfeiture of pay in the amount of $130.00, restriction for
10 days, and extra duty for 10 days.

5.  The applicant was transferred to Germany on 30 March 1982.

6.  On 2 July 1982, the applicant was notified that charges were pending
against him for unlawfully chambering one live round of ammunition into his
rifle and discharges his rifle into the ceiling (Government property).  He
acknowledged receipt of the notification on 3 July 1982.  On 7 July 1982,
after consulting with counsel, he submitted a request for discharge under
the provisions of Army Regulation 635-200, chapter 10, for the good of the
service in lieu of trial by court-martial.

7.  The appropriate authority approved the request for discharge on 13 July
1982 and directed the issuance of a discharge under other than honorable
conditions.

8.  The Report of Medical History that was completed by the applicant on
20 July 1982 indicates that in 1978, he had surgery on his head for a blood
clot on his right temple.

9.  Accordingly, on 29 July 1982, the applicant was discharged under other
than honorable conditions, under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service in lieu of trial by court-martial.
He had completed 9 months and 2 days of net active service.

10.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitations.

11.  Medical documentation that the applicant submits in support of his
application indicates that the applicant suffered two significant brain
injuries over the last 20 years and that these injuries have resulted in
significant neuralgic residual with a gait disorder, upper extremity
dysarthria, impaired cognitive function, and liability of moods.  His
attending physician indicates that the applicant is permanently disabled as
a result of his problems and unable to work in a job situation.  His
physician further states that it would be very difficult for the applicant
to support a family economically and emotionally.


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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

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.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, the evidence of
record shows that he unlawfully discharged his rifle and damaged Government
property, and that upon being notified of the charges pending against him,
he submitted a request for discharge for the good of the service in lieu of
trial by court-martial.  There is no evidence in the available records that
supports his contentions that his head injury contributed to his acts of
indiscipline.

4.  In order to justify correction of a military record the applicant must
show 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.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 July 1982; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 July 1985.  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

__CG ___  __MF ___  __EM___  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.




                                  _____Curtis Greenway_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060014724                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070412                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19830729                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000/REQ DISCHARGE FOR GOS          |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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