RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         23 February 2006
      DOCKET NUMBER:  AR20050012534


      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. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David K. Hassenritter         |     |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 undesirable discharge (UD)
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he was involved in an Army Personnel
Carrier (APC) accident while on maneuvers in Germany and received a severe
head injury that changed his life.  He claims that after the accident, he
began doing things totally out of character and he paid the price for it.
He states that he finds himself approaching his senior years without any
benefits or coverage.  He further claims that he has a bone spur on one of
his lower vertebrae, and he lost his job due to his failing vision.  He
requests that based on these reasons, his claim be favorably considered by
the Board.

3.  The applicant provides a Statement in Support of Claim (VA Form 21-
4138) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 June 1971.  The application submitted in this case is
dated
12 August 2005.

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.  The applicant’s record shows he was inducted into the Army and entered
active duty on 26 February 1970.  He was trained in, awarded and served in
military occupational specialty (MOS) 11B (Light Weapons Infantryman), and
the highest rank he attained while serving on active duty was private/E-2
(PV2).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows he
earned the National Defense Service Medal and Sharpshooter Qualification
Badge with Rifle Bar during his tenure on active duty.  His record
documents no acts of valor, significant achievement, or service warranting
special recognition.

5.  On 13 November 1970, a Charge Sheet (DD Form 458) was prepared
preferring seven court-martial charges against the applicant for violating
Articles 80, 86, 87, 92, 121, 128, and 134 of the Uniform Code of Military
Justice (UCMJ). Charge I was for violating Article 80 by attempting to
murder a patrolman by running at him with an automobile.  Charge II was for
two specifications of violating Article 86 by being absent without leave
(AWOL) from 7 through
25 October 1979 and on 28 October 1970.  Charge III was for violating
Article 87 by missing movement with his unit.  Charge IV was for violating
Article 92 by operating a motor vehicle without a valid operator’s permit.
Charge V was for three specifications of violating Article 92 by stealing
an automobile on two separate occasions and for stealing an M-16 rifle.
Charge VI was for violating Article 128 by committing an assault on a staff
sergeant.  Charge VII was for three specifications of violating Article 134
by breaking restriction, leaving the scene of an accident, and wrongfully
communicating a threat to a first lieutenant.
6.  The applicant consulted with legal counsel and was advised of the basis
for the contemplated trial by court-martial, the effects of an UD and of
the rights available to him.  Subsequent to receiving this legal counsel,
the applicant voluntarily requested discharge for the good of the service,
in lieu of trial by court-martial.

7.  In his request for discharge, the applicant acknowledged that he
understood that if his discharge request was approved, he could be deprived
of many or all Army benefits, that he could be ineligible for many or all
benefits administered by the 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 an UD.  In a handwritten statement
the applicant provided with the discharge request, he also stated that if
he were sent back to duty, he did not think he would stay.

8.  On 21 April 1971, the separation authority approved the applicant’s
request for discharge, and directed that the applicant be reduced to the
lowest enlisted grade and that he receive an UD.  On 8 June 1971, the
applicant was discharged accordingly.  The DD Form 214 he was issued shows
he completed a total of
1 year, 2 months, and 25 days of creditable active military service and
that he accrued 16 days of time lost due to AWOL.

9.  On 27 December 1982, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

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.

11.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the
commission of offenses punishable under the UCMJ with a punitive discharge.
 After consulting with defense counsel, he voluntarily requested discharge
in lieu of trial by court-martial.  All requirements of law and regulation
were met and that the rights of the applicant were fully protected
throughout the separation process. Further, his discharge accurately
reflects his short and undistinguished record of 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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 27 December 1982.
As a result, the time for him to file a request for correction of any error
or injustice to this Board expired on 26 December 1985.  However, he failed
to 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 _  ___JCR     ___DKH _  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                 |AR20050012534                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/23                              |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |1971/06/08                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C10                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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