RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 December 2004
      DOCKET NUMBER:  AR20040003174


      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 D. Simmons              |     |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, in effect, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that at the time of his discharge, he
was immature, which had a lot to do with his behavior.  He further claims
the punishment he received was excessive.  He also states his attitude has
changed and he is a born again Christian and big supporter of his
community.

3.  The applicant provides three third-party character references in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 December 1981.  The application submitted in this case
is dated
6 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.  The applicant’s record shows that he initially enlisted in the Regular
Army and entered active duty on 8 November 1978.  He was trained in and
awarded military occupational specialty (MOS) 73C (Finance Specialist) and
the highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal an
extensive disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on
the following six separate occasions for the offense(s) indicated:  3 March
1980, for assaulting another Soldier; 7 October 1980, for drunk and
disorderly, destroying military property, disobeying a lawful order, and
breach of the peace; 20 March 1981, for failing to go to his appointed
place of duty; 17 September 1981, for dereliction in the performance of his
duty; 16 October 1981, for possession of marijuana; and 26 October 1981,
for disobeying a lawful order.
5.  On 10 June 1981, the applicant was found guilty of stealing a watch,
three specifications of assault, failure to repair, and wrongfully
soliciting to commit a UCMJ offense.  His sentence included a forfeiture of
$250.00 per month for five months, confinement at hard labor for 100 days
and a bad conduct discharge (BCD), which was suspended for six months.

6.  The applicant was in military confinement at Fort Riley, Kansas, from
10 June 1981 through 31 August 1981.  Subsequent to his confinement, he was
assigned to the United States Army Retraining Brigade, Fort Riley.

7.  On 12 November 1981, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for three
specifications of violating Article 91 of the UCMJ.  The violations
included being disrespectful in language toward a superior noncommissioned
officer on or about 11 November 1981; disobeying the lawful order of a
superior noncommissioned officer on or about 12 November 1981; and being
disrespectful in language toward a superior noncommissioned officer on or
about 12 November 1981.

8.  On 18 November 1981, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial and the
maximum permissible punishment authorized under the UCMJ.  He was also
advised of the possible effects of an UOTHC discharge and of the procedures
and rights available to him.  Subsequent to this counseling, he voluntarily
requested discharge under the provisions of chapter 10, Army Regulation 635-
200, for the good of the service, in lieu of trial by court-martial.

9.  In his request for discharge, the applicant indicated he understood the
implications associated with his discharge request and that by requesting
discharge, he was acknowledging that he was guilty of the charge(s) against
him, or of a lesser included offense that authorized the imposition of a
bad conduct or dishonorable discharge.  He further stated that under no
circumstances did he desire rehabilitation because he had no desire to
perform further military service. He also acknowledged that he understood
he could receive an UOTHC discharge and that this could result in his being
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
of his rights and benefits as a veteran under both Federal and State law.
He finally confirmed that he understood he could encounter substantial
prejudice in civilian life because of an UOTHC discharge.
10.  On 30 November 1981, the separation authority approved the applicant’s
request for discharge and directed he receive an UOTHC discharge.  On
4 December 1981, the applicant was discharge accordingly.  The DD Form 214
he was issued confirms he completed a total of 2 years, 9 months and 29
days of creditably active military service and accrued a total of 88 days
of time lost due to military confinement.

11.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board (ADRB) for an upgrade of his discharge within
its 15-year statute of limitations.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his immaturity impaired his ability to
serve and that his discharge was too harsh were carefully considered.
However, there is insufficient evidence to support these claims.  The
evidence of record confirms he successfully completed training and that his
excessive misconduct clearly supported his separation processing.

2.  The third-party character references submitted by the applicant were
also carefully considered.  However, while admirable, his post service
conduct alone does not support an upgrade of his discharge at this late
date.

3.  The evidence of record confirms 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 undistinguished
service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 December 1981.  Therefore, the time
for him to a request for correction of any error or injustice expired on 3
December 1984.  However, he failed to 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__  _LDS___  _JMF ___  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                 |AR20040003174                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/09                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1981/12/04                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of Court-Martial                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]