RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 June 2005
      DOCKET NUMBER:  AR20040004926


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 to an Honorable Discharge with
benefits.

2.  The applicant states he was recently diagnosed as having bipolar
affective disorder type II which he has had all his life.  Without proper
medication, this illness can be totally chaotic and violent.

3.  The applicant provides no supporting documentation, but states that he
will produce all medical records regarding his illness upon request or at a
hearing.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 July 1977.  The application submitted in this case is
dated 28 July 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 a period of 3 years.
His DD Form 214 (Report of Separation from Active Duty) indicates the date
of entry as being 29 July 1976.  However, his enlistment contract shows his
oath of office and date of entry as being 30 July 1976.

4.  He completed One-Station Unit Training (OSUT) whereupon he was awarded
military occupational specialty (MOS) 12B1P, Combat Engineer.  He
subsequently completed basic airborne training and was awarded the
Parachutist Badge.

5.  On 10 March 1977, the applicant accepted non-judicial punishment (NJP),
under the provisions of Article 15, Uniform Code of Military Justice, for
appearing at the Post Exchange in need of a haircut and a shave on 17
February 1977.  Punishment included forfeiture of $50.00 and extra duty for
a period of 7 days.
6.  On 17 May 1977, the applicant accepted NJP for 2 specifications of
being disrespectful to a non-commissioned officer on 11 May 1977.
Punishment included detention at the Correctional Custody Facility for 30
days, forfeiture of $100.00 per month for 2 months, and reduction to pay
grade E-1.

7.  On 25 May 1977, court-martial charges were preferred against the
applicant for escaping from physical restraint at the Correctional Custody
Facility on 23 May 1977 and wrongfully appropriating an Air Force 2 1/2 ton
truck on 24 May 1977.

8.  On an unknown date, the applicant requested discharge for the good of
the service under the provisions of Chapter 10, Army Regulation 635-200,
after consulting with counsel.  He submitted a statement in his own behalf.

9.  The applicant's company and battalion commanders both recommended
approval of the request with the issuance of an Under Other Than Honorable
Conditions (UOTHC) discharge.

10.  On 1 June 1977, the General Court-Martial Convening Authority approved
the discharge and directed the issuance of a UOTHC discharge.

11.  On 9 June 1977, the applicant was given a mental status evaluation and
a separation physical.  He was free of mental and physical; defects and
qualified for separation action.

12.  On 19 July 1977, the applicant was separated with a UOTHC discharge.
He was credited with 11 months and 21 days of active federal service.

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

14.  On 21 May 1980, the Army Discharge Review Board (ADRB) denied the
applicant's request for an upgrade of his 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 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’s voluntary request for separation under the provisions
of chapter 10, AR 635-200, for the good of the service, to avoid trial by
court-martial, was administratively correct and in conformance with
applicable regulations.  There is no indication that the request was made
under coercion or duress.

2.  The applicant has not provided, and the record does not contain,
evidence that the applicant suffered from a physical or mental disability
that would disqualify him from continued active Federal service.

3.  The ABCMR does not change a Soldier's discharge status in order to
improve eligibility for the Department of Veterans Affairs (DVA) benefits.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 May 1980.  As a
result, the time for the applicant to file a request for correction of any
error injustice to this Board expired on 20 May 1983.  However, the
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

__fe____  __teo___  __mjnt__  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.



                                        Fred Eichorn
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004926                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050602                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770719                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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