RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 March 2004
      DOCKET NUMBER:   AR2003091351


      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. Edmund P. Mercanti            |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Arthur A. Omartian            |     |Member               |
|     |Mr. Robert L. Duecaster           |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 (UOTHC) be upgraded to a discharge Under Honorable Conditions
(general discharge).  He also requests that the Board “Fix my DD 214 so I
can receive medical benefits.”

2.  The applicant does not provide any statement explaining why he believes
his characterization of service was in error or unjust.

3.  The applicant does not provide any documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 21 April 1982.  The application submitted in this case is dated 3 May
2003.

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.  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.

3.  The applicant enlisted in the Regular Army on 29 November 1978.  He was
awarded the military occupational specialty of Man Portable Air Defense
System Crewman and was promoted to pay grade E-4.

4.  During the applicant’s active Federal service, he accepted non-judicial
punishment (NJP) under Article 15, Uniformed Code of Military Justice, on
six occasions for striking a fellow soldier in the back of his head and
neck with a closed fist; for assaulting a fellow soldier by striking him in
the back with a means likely to produce bodily harm, to wit: a broom
handle; for willfully destroying, by kicking in, a window, which was
military property; for disobeying a lawful command; for disobeying a lawful
order; for being drunk and disorderly; for possessing marijuana; for
failing to go at the time prescribed to his appointed place of duty (two
specifications); for being disrespectful in language towards a superior
noncommissioned officer; for using provoking (racial) words; and for being
drunk and disorderly in station.

5.  On 25 March 1982, the applicant’s commander notified him of his intent
to recommend his separation due to misconduct and of his rights in
conjunction with that recommendation.  On 29 March 1982, the applicant
waived all of his rights.

6.  On 29 March 1982, the applicant was given a mental status evaluation
which determined that he did not have any significant mental illness.

7.  On 13 April 1982, the appropriate authority waived further counseling
and rehabilitation efforts and approved the applicant’s commander’s
recommendation.

8.  Accordingly, on 21 April 1982, the applicant was discharged and
assigned a characterization of service of UOTHC.  He had 3 years, 4 months
and 23 days of active Federal service.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  When discharge is approved under
this authority, the characterization of service assigned is normally UOTHC.

10.  On 31 October 1985, the Army Discharge Review Board (ADRB) denied the
applicant’s request to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s repeated acts of serious misconduct certainly warranted
discharge due to misconduct.

2.  The applicant was afforded the rights inherent with a separation for
misconduct and waived those rights.  His discharge was accomplished in
accordance with the regulation in effect at the time.

3.  The applicant has not argued that his discharge was in error or unjust,
and there is no evidence of record that his discharge was in error or
unjust.

4.  While it is understandable that the applicant would like to be eligible
for Department of Veterans Affairs medical benefits, this in of itself is
insufficient to warrant upgrading a properly characterized discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1985, the date the ADRB
denied his request to upgrade his discharge; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 30 October 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne____  ____aao _  ___rld __  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.




            __________Fred N Eichorn____________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091351                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040302                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A60.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |