RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 February 2004
      DOCKET NUMBER:   AR2003091649


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Raymond V. O'Connor, Jr.      |     |Chairperson          |
|     |Ms. Margaret V. Thompson          |     |Member               |
|     |Mr. Lawrence Foster               |     |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, in essence, that his under other than honorable
conditions (UOTHC) discharge be upgraded to that of a honorable discharge.

2.  The applicant states, in effect, that he was forced out of the
military; that no charges were ever filed against him; that he loves his
country and believes he was treated unfairly; and that someday he will
receive justice.  He also states that he wants his discharge upgraded
because he has children and the UOTHC discharge is an embarrassment.

3.  The applicant provides nothing in support of his request, though his
application states he has documents in his possession that supports his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 22 December 1981.  The application submitted in this case is
dated 22 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.  On 13 December 1979, the applicant enlisted in the U.S. Army Reserve
Delayed Entry Program (DEP).  On 26 December 1979, the applicant was
separated from the DEP and he enlisted in the Regular Army for 3 years.
The applicant completed the training requirements and he was awarded
military occupational specialty (MOS) 71L (Administrative Specialist).  On
5 June 1980, he was assigned to Fort Hood, Texas where he performed duties
associated with his MOS.

4.  On 30 March 1981, the applicant departed his unit in an absent without
leave (AWOL) status and he remained AWOL until he returned to military
control at the Personnel Control Facility, Fort Dix, New Jersey on 8
November 1981.

5.  The applicant's records no longer contain all of the facts and
circumstances surrounding the discharge process.  However, his record
contains an ADRB Case Report and Directive, prepared on 16 June 1994, which
shows that, on 12 November 1981, court-martial charges were preferred
against the applicant for the above period of AWOL.  On an unknown date,
the applicant consulted with legal counsel and requested discharge for the
good of the service in lieu of trial by court-martial under the provisions
of chapter 10, Army Regulation 635-200.  On 16 November 1981, a mental
status evaluation cleared the applicant for separation.  On 17 November
1981, the applicant was placed on excess leave pending approval of his
request for separation.  On 19 November 1981, both the applicant's unit and
intermediate commanders recommended approval with a UOTHC discharge.  On 25
November 1981, the separation authority approved separation with a UOTHC
discharge.

6.  The applicant’s DD Form 214 (Certificate of Release or Discharge from
Active Duty) that was prepared at the time of separation shows that, on 22
December 1981, the applicant was separated for the good of the service-in
lieu of trial by court-martial under the provisions of chapter 10, Army
Regulation 635-200, in pay grade E-1 with a UOTHC discharge.  He had
completed 1 year, 4 months and
18 days of active military service and he had 224 days of lost time due to
being AWOL.  The highest rank that he achieved was private first class,
pay grade, E-3.

7.  On 16 June 1984, the Army Discharge Review Board denied the applicant's
request for an upgrade of his discharge.

8.  A Criminal Investigation (Division) Command (CID) Report of
Investigation, dated 20 April 1982, shows that between 24 and 29 December
1980, while the applicant was in an AWOL status, he acted in concert with
some others and entered the Transportation Warehouse Building located at
Fort Hood and stole numerous items of personal household goods collectively
valued at $8,784.  The applicant was titled for housebreaking, larceny, and
receiving stolen property. The CID Report was finalized after the applicant
had been separated.

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 UOTHC
discharge is considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Although the documents stating the facts and circumstances surrounding
the discharge process are missing from the applicant's record, the record
contains an ADRB Case Report and Directive and a copy of his DD Form 214,
both of which show the applicant was discharged under the provisions of
chapter 10, Army Regulation 635-200 for the good of the service.
Therefore, the applicant would have been charged with the commission of an
offense punishable under the uniform code of military justice (UCMJ) with a
punitive discharge.  He would have consulted with defense counsel and
signed a statement indicating he had been informed that he could receive a
UOTHC discharge and the ramifications of receiving such a discharge.  He
would have voluntarily requested discharge to avoid trial by court-martial.
 In doing so, he would have admitted guilt to the stipulated offense(s)
under the UCMJ.  The Board presumes administrative regularity and the
applicant has provided no information that would indicate the contrary.

2.  There is no evidence that the applicant was treated unfairly, coerced,
or forced to take any actions against his will during the discharge
process, nor has he provided any.  He has established no basis for the
upgrade of his discharge.

3.  Records show the applicant should have discovered the error or
injustice now under consideration on 16 June 1984; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 15 June 1987.  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

__rvo___  __mvt___  __lf____  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.



            Raymond V. O'Connor, Jr.
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091649                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040224                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19811222                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A71.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |