RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060015533


      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. William Powers                |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Dale DeBruler                 |     |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 discharge.

2.  The applicant states that his platoon sergeant spit in his face and he
retaliated.  He states that he did not hit his platoon sergeant; however,
he was not afforded an opportunity to plead his case at a trial by court-
martial.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 June 1982.  The application submitted in this case is
dated 25 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 31 May 1977, the applicant enlisted in the United States Army
Reserve (USAR) in Montgomery, Alabama, for 6 years, in the pay grade of E-
1.  On 14 June 1977, he enlisted in the Regular Army (RA) for 3 years and
he successfully completed his training as a heavy antiarmor weapons
crewman.

4.  The applicant completed 3 years of net active service prior to being
honorably released from active duty (REFRAD) on 13 June 1980, under the
provisions of Army Regulation 635-200, chapter 2, at the expiration of his
term of service.  The applicant was transferred to the USAR Control Group
(Reinforcement) to complete his Reserve obligation.

5.  The applicant reenlisted in the Army for 3 years on 29 September 1981.



6.  The facts and circumstances pertaining to the applicant's discharge are
not
on file.  However, the available records do show that on 20 May 1982, the
applicant 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 27 May
1982.  Accordingly, on 14 June 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 8 months and 16 days of net active service this
period.

8.  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.

9.  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.  It appears that 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.  It also appears that 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, they are not
substantiated by the evidence of records.  The available records clearly
show that on 20 May 1982, the applicant 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 nor has the applicant submitted any
evidence to support his contention that he was not afforded an opportunity
to request trial by
court-martial prior to his discharge.

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 14 June 1982; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 13 June 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

__WP ___  ___WC__  __DD___  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.




                                  _____ William Powers_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015533                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19820614                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000/DISCHARGE FOR THE GOS          |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]