RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 February 2005
      DOCKET NUMBER:  AR20040000388


      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:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 an upgraded to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that he was much too young to
understand what he was doing at the time his discharge was taking place.
He claims to have had childhood problems that haunt him to this day.  He
states that he was a victim of sexual abuse as a child, and while in the
service he quieted these demons through the use of alcohol.  He further
states that he knows he was at fault for his conduct at the time, but that
his past had a great effect on his behavior.  He also claims these
childhood problems are still difficult to discuss and he is still seeing
psychiatrist in an attempt to work through these issues.  He claims that
wishes he could go back in time and change his behavior, but he cannot do
that.  He concludes that he has great admiration for the military, which
was instilled in him during his service, and now asks for an upgrade of his
discharge.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 September 1977.  The application submitted in this case
is dated 6 May 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 6 December 1976, the applicant enlisted in the Regular Army and
entered active duty.  He was trained in and awarded military occupational
specialty (MOS) 11B (Infantryman).

4.  The applicant’s record shows that he entered active duty as a private/E-
1 and never advance above this rank while serving on active duty.  The
record documents no acts of valor, significant achievement or service
warranting special recognition.

5.  Upon completion of advanced individual training (AIT) the applicant was
placed on orders for assignment to the United States Army Europe (USAEUR).
On 9 July 1977, after failing to report for overseas movement, he was
declared absent without leave (AWOL).

6.  On 2 September 1977, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from on or about
7 July through on or about 2 September 1977.

7.  On 7 September 1977, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights that were
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.

8.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged 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 Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

9.  On 16 September 1977, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
28 September 1977, the applicant was discharged accordingly.  The DD Form
214 he was issued at the time confirms he completed 7 months and 29 days of
creditable active military service and accrued 54 days of time lost due to
AWOL.

10.  On 7 March 1986, the Army Discharge Review Board (ADRB) voted to deny
the applicant’s request for an upgrade of his discharge after concluding
that his discharge was proper and equitable.

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.

12.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 contention that childhood problems and alcohol abuse
impaired his ability to serve was carefully considered.  However, these
factors are not sufficiently mitigating to warrant granting the requested
relief.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  The
record further confirms all requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Finally, it is concluded that the applicant’s
discharge accurately reflects his overall record of short and
undistinguished service.

3.  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.
4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 7 March 1986.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 6 March 1989.  However, he 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM    ___LJO_  ___LMB _  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.




            ___Melvin H. Meyer ______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000388                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/03                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1977/09/28                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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