RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           3 February 2005
      DOCKET NUMBER:  AR20040000632


      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             |
|     |Mrs. Nancy L. Amos                |     |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 that his discharge be upgraded and he be paid
back pay with interest.

2.  The applicant states that he was discharged without a hearing and
without receiving any back pay, which entitles him to interest and damages.
 Furthermore, he was discharged in violation of "equal protection and
property interest."

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 May 1978.  The application submitted in this case is dated
29 October 2003 and was received by the Army Board for Correction of
Military Records (ABCMR) on 13 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 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.  The applicant was born on 18 December 1953.  He enlisted in the Regular
Army on 19 July 1977.  He completed basic training.  He apparently
completed advanced individual training as he was awarded military
occupational specialty 11B (Infantryman).

4.  Between September 1977 and May 1978, the applicant accepted non-
judicial punishment under Article 15, Uniform Code of Military Justice on
five different occasions for offenses including being absent without leave
(AWOL) (four times) and failing to go to his appointed place of duty
(once).

5.  On 26 January 1978, the applicant completed a separation physical and
was found qualified for separation.

6.  On 8 March 1978, the applicant was convicted by a special court-martial
of being AWOL from on or about 14 February 1978 to on or about 21 February
1978 and from on or about 23 February 1978 to on or about 27 February 1978.
 He was sentenced to be confined at hard labor for 30 days.

7.  On 17 May 1978, the applicant's commander at the U. S. Army Retraining
Brigade, Fort Riley, KS recommended he be discharged under the provisions
of Army Regulation 635-200, chapter 14 for frequent incidents of a
discreditable nature.  The commander noted the applicant had received
considerable counseling since his arrival at the facility by the social
workers, leadership team and unit cadre.  He had not responded favorably to
the counseling.

8.  On 19 May 1978, the applicant was advised by consulting counsel of the
basis for the contemplated separation action.  He waived consideration of
his case by a board of officers, waived personal appearance before a board
of officers, elected not to submit statements in his own behalf, and waived
representation by counsel.  On this date also he signed a separate document
stating that, after being informed by his unit commander of the pending
discharge proceedings, that he understood the commander's explanation of
the reasons why he was being recommended for discharge and also understood
his rights and the procedures involved.

9.  On 22 May 1978, the applicant requested that he be granted a medical
waiver of his physical examination and understood that he could be waiving
his medical benefits.  He was advised by counsel of this right to a
physical examination and the effects of waiving a physical prior to
discharge.  On 25 May 1978, he signed a document stating that, to the best
of his knowledge, there had been no significant change in his medical
condition since the accomplishment of his last medical examination.

10.  The appropriate authority approved the recommendation for separation
and directed the applicant receive a discharge under other than honorable
conditions.

11.  On 25 May 1978, the applicant was discharged, with a discharge under
other than honorable conditions, under the provisions of Army Regulation
635-200, chapter 14 for misconduct.  He had completed 7 months and 4 days
of creditable active service and had 93 days of lost time.

12.  On 14 September 1982, the Army Discharge Review Board (ADRB) denied
the applicant’s request for an upgraded discharge.

13.  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.  Paragraph 14-33b(1) stated that
patterns of misconduct included frequent incidents of a discreditable
nature with civil or military authorities.

14.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the soldier’s service generally has met the standards of acceptable
conduct and performance of duty for Army personnel or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 A general discharge is a separation from the Army under honorable
conditions.  It is issued to a soldier whose military record is
satisfactory but not sufficiently meritorious to warrant an honorable
discharge.

15.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The applicant was informed of his right and offered the opportunity to
have his case heard by a board of officers and he waived that right.

3.  Considering the applicant’s conviction by one special court-martial and
his numerous infractions of military discipline, the characterization of
his discharge as under other than honorable conditions was and still is
appropriate.

4.  There is no evidence of record and he provides none that supports his
contention that he is entitled to back pay with interest and damages.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 September 1982, the date of the
ADRB action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 13 September 1985.
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

__mhm___  __lmb___  __ljo___  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                 |AR2004000632                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050203                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780525                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A64.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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