RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          12 April 2005
      DOCKET NUMBER:  AR20040002488


      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. John Slone                    |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Curtis Greenway               |     |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 a general discharge (GD).

2.  The applicant states no contentions.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 20 June 1980.  The application submitted in this case is dated
5 June 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 16 January 1979, the applicant enlisted in the Delayed Entry Program
(DEP).  On 13 February 1979, he was discharged from the DEP and he enlisted
in the Regular Army for 4 years and training in military occupational
specialty (MOS) 71D (Legal Clerk).  The applicant completed the training
requirements and he was awarded MOS 71D.  On 5 July 1979, he was assigned
to Germany.

4.  On 2 May 1980, charges were preferred against the applicant for
conspiring to possess and sell marijuana in the hashish form on 22 February
1980; conspiring in the wrongful sale and transfer of marijuana to a
military police investigator on 23 February 1980; and for wrongfully
committing an indecent, lewd and lascivious act on 1 March 1980.

5.  On 14 May 1980, the applicant consulted with legal counsel and
requested discharge under the provisions of chapter 10, Army Regulation 635-
200 for the good of the service in lieu of court-martial.  He authenticated
a statement with his signature acknowledging that he understood the
ramifications and effects of receiving a UOTHC discharge.  He also admitted
he was guilty of the above offenses and that he had no further desire to
serve in the military or for rehabilitation.

6.  On the same date, both the applicant's unit commander and the
intermediate commanders recommended approval of the applicant's request
with a UOTHC discharge.  The unit commander cited the reason for his
recommendation was the seriousness of the offenses for which the applicant
was charged and the detrimental effect the applicant's actions had on the
good order and discipline of the unit.

7.  On 22 May 1980, the approval authority approved the applicant's request
for discharge under the provisions of chapter 10 and directed that he be
reduced to the lowest enlisted grade and separated with a UOTHC discharge.


8.  On 2 June 1980, the applicant underwent a physical examination.  The
"qualified" block is not annotated, however, the examining physician stated
the applicant's physical condition was "normal health."

9.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows that he was administratively separated on 20 June 1980 under the
provisions of chapter 10, Army Regulation 635-200 with a UOTHC discharge
for conduct triable by court-martial.  He had completed 1 year, 4 months
and 8 days of active military service and he had no recorded lost time.

10.  On 19 November 1981, the Army Discharge Review Board denied the
applicant’s request for an upgrade of his discharge.

11.  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 voluntarily requested an administrative separation under
the provisions of chapter 10, Army Regulation 635-200 to avoid trial by
court-martial. There is no indication that the request was made under
coercion or duress.

2.  The applicant's attitude and behavior was inconsistent with the Army’s
standards for acceptable personal conduct and his overall quality of
service did not warrant a GD.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 19 November 1981.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 18 November 1984.  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

__js____  __slp___  __cg____  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 Slone
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002488                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050412                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19800620                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A71.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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