RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          15 February 2005
      DOCKET NUMBER:  AR20040000093


      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:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Thomas A. Pagan               |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to a general discharge under
honorable conditions.

2.  The applicant states in a letter written to the Board that he deeply
regrets the incident that led to his discharge.  He believes that alcohol,
youth and inexperience contributed to his problems.  He entered the
military at age 21 and he began drinking sociably until his drinking got
out of control due to being lonely and homesick.  He has gone through
rehabilitation and he lives a productive life. He works at a Halfway House
as a rehabilitation technician.  He believes his discharge should be
upgraded based on his youth and the failure of his chain of command to help
him with his alcohol-related problems.

3.  The applicant provides:

      a.  A copy of his DD Form 214 (Certificate of Release or Discharge
from Active Duty) issued on 25 March 1983.

      b.  Letters of Appreciation, dated 3 July, 24 August and 21 September
1987.

      c.  Enlistment Contract.

      d.  Nonjudicial Punishment (NJP) Proceedings, dated 23 February 1983.

      e.  Medical Record, dated 16 April 1982.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 March 1983.  The application submitted in this case is dated
31 March 2004.

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 limitation 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 13 March 1981, the applicant enlisted in the Delayed Entry Program
(DEP).  On 5 May 1981, at age 22, he was discharged from the DEP and he
enlisted in the Regular Army for 3 years.  Following completion of all
required military training, he was awarded military occupational specialty
(MOS) 75C (Personnel Management Specialist).  On 14 September 1982, he was
assigned to Fort Sheridan, Illinois with duty in his MOS.

4.  On 23 February 1983, NJP under the provisions of Article 15, Uniform
Code of Military Justice, was imposed against the applicant for being
disorderly in the barracks parking lot on 6 February 1983 by riding on the
hood of a privately-owned vehicle while the vehicle was in motion, and for
wrongfully having in his possession some amount of marijuana.  His
punishment included reduction from pay grade E-4 to pay grade E-3, a
forfeiture of $165.00 pay per month for 1 month and 14 days of extra duty
and restriction.

5.  On 9 March 1983, court-martial charges were preferred against the
applicant for committing an indecent assault upon a female specialist five
by rubbing his genitals against her mouth and lips with the intent of
sexual gratification.

6.  On 23 February 1983, a mental status evaluation cleared the applicant
for separation.  On 24 March 1983, the applicant declined a separation
medical examination.

7.  The applicant's records do not contain all of the facts and
circumstances surrounding the discharge process.  However, his records do
contain a properly constituted DD Form 214 that was prepared at the time of
separation and signed by the applicant.  The DD Form 214 shows that, on 25
March 1983, he was separated with a UOTHC discharge for the good of the
service-in lieu of court-martial under the provisions of chapter 10, Army
Regulation 635-200.  He had completed a total of 1 year, 10 months and 21
days of active military service and he had no recorded lost time.

8.  There is no evidence that the applicant ever applied to the Army
Discharge Review Board for review of his discharge under that board's 15-
year statute of limitation.

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 was authorized, a UOTHC
discharge was then considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available records show that the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service.  Although, the facts and circumstances surrounding the discharge
process are missing, he would have been charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  He would have
consulted with defense counsel and signed a statement indicating that 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
evidence that would indicate the contrary.

2.  The applicant enlisted in the military at age 22.  Therefore, he met
entrance qualification standards, to include age and there is no evidence
that he was any less mature than other Soldiers of the same age who
successfully completed their military service obligation.

3.  The available evidence does not indicate the applicant had an alcohol
abuse problem.  Neither is there any evidence available that indicates he
requested assistance from his chain of command, but was denied.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
24 March 1986.  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___  __tap___  __kwl___  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.



                                  Jennifer L. Prater
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000093                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050215                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19830325                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0143                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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