RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2007
      DOCKET NUMBER:  AR20070002944


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. John G. Heck                  |     |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 her discharge under other than honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states that she was accused of having someone steal her
automobile.  She states that she was never involved with anything like that
and that she could not get a trial date because her lawyer was quitting in
December 1980.  She states that the "judge and member" were on vacation.
She states that she was unaware that she did not get an honorable discharge
and that she tried 10 years ago to get her discharge upgraded.  He states
that she believes that she was not responsible and that she was swayed to
take the discharge that she took.  She states that she gave the Army 110
percent and that even after her discharge she spoke very highly of the
Army.  She concludes by stating that it is unfair that she found out that
her discharge was under other than honorable conditions.

3.  The applicant provides no additional information in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 December 1979.  The application submitted in this case
is dated 19 December 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 24 March 1978, the applicant enlisted in the Army in Boston,
Massachusetts, for 3 years, in the pay grade of E-2.  She successfully
completed her training as a correctional specialist and she was assigned to
Headquarters and Headquarters Company, United States Disciplinary Barracks,
Fort Leavenworth, Kansas.

4.  She was promoted to the pay grade of E-3 on 1 September 1978.

5.  The applicant's charge sheet is unavailable for review.  However, the
available records show that on 7 December 1979, she 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.  In her request
for discharge she indicated that she was requesting discharge because of
the charges that were pending against her, which included conspiracy to
commit larceny by false pretenses of insurance proceeds payable by State
Farm Insurance Company, upon the total destruction of a 1987 Ford Granada
automobile, a value of about $5,775.00; wrongfully soliciting another
Soldier to make a false statement; wrongfully soliciting a female
specialist to commit assault and battery against a female private first
class because she was divulging certain information pertaining to the
Criminal Investigation Division's investigation against her; and two
specifications of conspiracy to commit arson with two other Soldiers by
setting the Ford Granada on fire.  The request for discharge indicates that
the two other Soldiers did drive the Ford Granada to Haven's Park,
Leavenworth, Kansas, and set fire to it, totally destroying the car.  In
the request for discharge, the applicant acknowledged that she understood
that by submitting the request for discharge, she was guilty of the charges
against her or of lesser included offenses therein contained which also
authorize the imposition of a bad conduct or dishonorable discharge.  The
applicant acknowledged that she had been afforded an opportunity to consult
with appointed counsel and that she was fully advised of the nature of her
rights under the Uniform Code of Military Justice.  She also acknowledged
that she understood that if her request for discharge was accepted, she may
be discharged under other than honorable conditions.

6.  The appropriate authority approved the request for discharge on
14 December 1979.  Accordingly, on 21 December 1979, 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.  She had completed 1 year, 8 months, and 28 days of
net active service.

7.  On 10 September 1985, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade her discharge.

8.  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.

9.  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 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 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 her 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, they are
unsubstantiated by the evidence of record.  The evidence of record shows
that she submitted a request for discharge acknowledging that she was
guilty of the charges against her or of lesser included offenses which also
authorize the imposition of a bad conduct or dishonorable discharge.

4.  In her request for discharge she also acknowledged that she had been
afforded an opportunity to consult with appointed counsel and that she was
fully advised of the nature of her rights under the Uniform Code of
Military Justice.  She acknowledged that she understood that if her request
for discharge was accepted, she may be discharged under other than
honorable conditions.  The type of discharge that she received was proper
and her discharge under other than honorable conditions appropriately
characterizes her overall record of service.




5.  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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 10 September 1985.
 As a result, the time for the applicant to file a request for correction
of any error or injustice to this Board expired on 9 September 1988.
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

__JLP___  ___LDS__  __JGH      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                 |AR20070002944                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070726                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000/FOR THE GOOD OF THE SERVICE    |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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