RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 August 2007
      DOCKET NUMBER:  AR20070000898


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Ernestine I Fields            |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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, in effect, that his discharge be upgraded to an
honorable discharge.

2.  The applicant provides no statement in support of his application.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 January 1982, the date he was discharged from active
duty.  The application submitted in this case is dated 9 December 2006;
however, it was received on 18 January 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 29 July 1980, the applicant enlisted in the Regular Army for a
period of
3 years.  He completed the required training and was awarded military
occupational specialty 82C (Field Artillery Surveyor).  The highest grade
he attained was pay grade E-2.

4.  On 5 June 1981, the applicant while assigned to a unit in Germany,
accepted nonjudicial punishment (NJP) for willfully and wrongfully damaging
by kicking down two traffic signs in the sum of about $200.00 property of
the host government.  His imposed punishment was a reduction to pay grade E-
1, a forfeiture of $75.00 pay, 7 days restriction and 7 days extra duty.


5.  On 12 August 1981, the applicant accepted NJP for being absent without
leave (AWOL) from 16 to 19 July 1981.  His imposed punishment was a
forfeiture of $70.00 pay, 14 days restriction and 14 days extra duty.

6.  On 24 September 1981, the applicant accepted NJP for failure to go at
the prescribed time to his appointed place of duty.  His imposed punishment
was a forfeiture of $250.00 pay, 45 days restriction and 45 days extra
duty.

7.  On 4 November 1981, court-martial charges were preferred against the
applicant of being AWOL from 4 September to 3 November 1981.

8.  On 7 November 1981, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
a discharge under other than honorable conditions and of the rights
available to him.  The applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.  He acknowledged
his guilt to the charges preferred against him.  He acknowledged that he
understood that if his discharge request was approved, that he could be
ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA), and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.  He further
indicated that he understood that he could encounter substantial prejudice
in civilian life by reason of a discharge under other than honorable
conditions.  The applicant did not submit a statement in his own behalf.

9.  On 31 December 1981, the separation authority approved the applicant’s
request for discharge and directed that he be issued a Discharge
Certificate Under Other Than Honorable Conditions (UOTHC).

10.  On 15 January 1982, the applicant was discharged under the provisions
of Army Regulation 635-200, Chapter 10 (Conduct Trial by Court-Martial).
The separation document (DD Form 214) he was issued confirms he completed
1 year, 4 months and 16 days of creditable active military service.

11.  Army Regulation 635-200 (Personnel Separations) 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.

12.  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.

13.  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 evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process, and his discharge
accurately reflects his overall record of undistinguished service.

2.  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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 January 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 January 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

____LDS_  ___ERM_  ___RJF _  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 D. Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/08/07                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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