RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 March 2005
      DOCKET NUMBER:  AR20040002094


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 under other than honorable conditions
(UOTHC) discharge be upgraded to at least a general discharge.

2.  The applicant states that he still wants to serve his country and needs
an upgrade to do so.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge From Active Duty) for the period 5 March 1980 to 24
February 1981.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 February 1981.  The application submitted in this case
is dated 19 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 limitations 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 enlisted in the Regular Army for 4 years on 5 March 1980.
 Upon completing all required military training, he was awarded military
occupational specialty (MOS) 63B (Power Generator and Wheeled Vehicle
Mechanic) and assigned to Fort Stewart, Georgia.

4.  The applicant departed his unit in an absent without leave (AWOL)
status on 30 August 1980 and remained absent until returning to military
control at Fort Knox, Kentucky on 1 December 1980.  Court-martial charges
were preferred against him and, after legal consultation, he requested
discharge for the good of the service in lieu of trial by court-martial
under the provisions of chapter 10, Army Regulation (AR) 635-200.  His
request was approved and he was separated under other than honorable
conditions on 24 February 1981.

5.  The applicant's DD Form 214 shows that he served 8 months and 19 days
of creditable active Federal service and had 3 months and 2 days of lost
time due to being AWOL.  He was separated under the authority of chapter
10, AR 635-200, by reason of "administrative discharge – conduct triable by
court-martial" and received RE codes of RE-3 and 3B.

6.  Pertinent ARs provide that prior to discharge or release from active
duty, individuals will be assigned RE codes based on their service records
or the reason for discharge.  AR 601-210 covers eligibility criteria,
policies, and procedures for enlistment and processing into the Regular
Army and the US Army Reserve.  Chapter 3 of that regulation prescribes
basic eligibility for prior service applicants for enlistment. That chapter
includes a list of Armed Forces RE codes, including RA RE codes.  RE codes
of RE-3 and 3B apply to persons not qualified for continued Army service,
but the disqualification is waivable.

7.  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 a discharge for the good of the service in lieu of
trial by court-martial.  The requests may be submitted at any time after
charges have been preferred and must include the individual’s admission of
guilt.  Army policy states that although an honorable or general discharge
is authorized, a discharge under other than honorable conditions is
normally considered appropriate.

8.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade and change in reason for discharge.  The ADRB, after
considering his case on 4 November 1982, denied his request.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted for 4 years in 1980 and, after just 8 months of
service, he went AWOL.  Upon returning to military control, he sought
discharge under chapter 10, AR 635-200 in order to avoid the possibility of
a Federal criminal conviction.

2.  The applicant’s discharge proceedings were conducted in accordance with
law and regulations applicable at the time.  The character of the discharge
is commensurate with the applicant's overall record of military service.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 4 November 1982.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 3 November 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

__jed___  __jrs___  __mjf___  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.



                                        John E. Denning
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040002094                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050317                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19810224                                |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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