RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2007
      DOCKET NUMBER:  AR20070004791


      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:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Mr. John T. Meixell               |     |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 when he entered the Army in 1979, he was
under age.  He states that he forged his birth certificate because he was
running from the Fort Lauderdale Police Department.  He states that when he
entered basic training and advanced individual training, he was a top
Soldier twice during training and that he was later demoted due to partying
too much.  He states, in effect, that as a result of his "errored ways" he
has worked real hard on peace and its issues.  He states, in effect, that
he has contacted the President constantly regarding these matters.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  On 21 June 1979, the applicant enlisted in the Regular Army at age 18,
in Miami, Florida, for 3 years, in the pay grade of E-1.

3.  On 16 July 1979, nonjudicial punishment was imposed against the
applicant for wrongfully engaging in a fist fight.  His punishment
consisted of a forfeiture of pay, restriction and extra duty.

4.  He went on to successfully complete his training as an infantryman and
he was promoted to the pay grade of E-2 on 21 December 1979.


5.  Although the actual charge sheet is unavailable for review at this
time, the available records indicate that the applicant was notified that
charges were pending against him for assaulting another Soldier on or about
16 May 1980 and for possession of some amount of marijuana on or about 7
March 1980.  He acknowledged receipt of the notification and, 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.  The applicant declined the opportunity to submit a statement in
his own behalf.

6.  The appropriate authority approved the request for discharge on 16 July
1980. Accordingly, on 11 August 1980, 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 1 year, 1 month and 21 days of net active
service.

7.  On 23 March 1990 the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.

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.

10.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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 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 regarding his age has been noted.  However,
his contention is not supported by the evidence of record.  The evidence of
record shows that he was 18 years old at the time of his enlistment in the
RA.  Additionally, there is a great number of Soldiers who have enlisted in
the Army at age 17 and 18 and have served their country with honor.  Youth
and immaturity are not sufficiently mitigating to warrant the requested
relief.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LE____  __RTD___  __JTM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.


                                  ____    Lester Echols_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070004791                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070823                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000/FTGOS                          |
|2.  717                 |144.7400/CNDCT TRIABLE BY CM - DRUGS    |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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