RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          16 June 2005
      DOCKET NUMBER:  AR20040005386


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. Kenneth W. Lapin              |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 or an honorable discharge.

2.  The applicant states, in effect, that his discharge does not
appropriately reflect the character of his service because he served his
country honorably and he was separated due to personal problems.  He was
being assigned to Germany and his wife was pregnant and experiencing
complications.  He requested a hardship discharge; however, he was told he
could go to Germany or take the UOTHC discharge.

3.  The applicant provides in support of his request a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 February 1982.  The application submitted in this case is
dated 3 August 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 5 August 1980, the applicant enlisted in the Regular Army for
3 years and training in military occupational specialty (MOS) 95B (Military
Police).  Following completion of all required military training, he was
awarded MOS 95B.

4.  The applicant was assigned to the Recruiting Station, Hamilton, Ohio to
perform the duties of a hometown recruiter from 20 November 1980 until he
went on casual leave enroute to Germany on 20 December 1980.

5.  On 7 January 1981, the applicant was assigned to Germany with duties in
MOS 95B.  He left his unit in an absent without leave (AWOL) status from
23 August to 7 September 1981 until he returned to military control at the
Personnel Control Facility (PCF), Fort Knox, Kentucky.  He left the PCF in
an AWOL status from 14 September to 25 October 1981.
6.  On 27 October 1981, court-martial charges were preferred against the
applicant for the period of AWOL from 14 September to 25 October 1981.  The
available evidence does not show he was ever charged with the period of
AWOL from 23 August to 7 September 1981.

7.  On 28 October 1981, 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 was
advised that he could receive a UOTHC discharge.  He authenticated a
statement with his signature acknowledging he understood the ramifications
and effects of receiving a UOTHC discharge.  He declined to submit a
statement in his own behalf.  He also declined a separation physical
examination.

8.  On 28 December 1981, the applicant's commander recommended approval of
the applicant's request and the issuance of a UOTHC discharge.  The
commander cited the basis for recommendation was that based on the
applicant's record; he believed punishment would have a minimal
rehabilitative effect and that separating the applicant would be in the
best interest of all concerned.

9.  On 28 December 1981, the intermediate commander recommended approval
with a UOTHC discharge.

10.  On 6 January 1982, the approval authority approved the applicant's
request for discharge under the provisions of chapter 10, Army Regulation
635-200 and directed that he be separated with a UOTHC discharge in pay
grade E-1.  The highest pay grade that he achieved was pay grade E-3.

11.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows
that on 6 January 1982, he was reclassified into MOS 11B, Infantryman.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that, on 23 February 1982, the applicant was separated
under the provisions of chapter 10, Army Regulation 635-200 with a UOTHC
discharge, due to conduct triable by court-martial.  He had completed 1
year and 4 months, and 22 days of active military service.  His DD Form 214
also shows lost time from 23 August to 7 September 1981 and from 14
September to
25 October 1981.

13.  On 9 November 1983, the applicant appeared with counsel before the
Army Discharge Review Board for a personal appearance hearing and he was
denied an upgrade of his discharge.

14.  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 was authorized, a UOTHC
discharge was considered appropriate.

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 Army Regulation 635-200, chapter 10, to avoid trial by court-martial was
administratively correct and in conformance with applicable regulations.

2.  There is no evidence available that indicates the applicant was coerced
into making the request for separation.

3.  Both the applicant's reason for discharge and the characterization of
his service were appropriate considering the facts surrounding the
discharge.

4.  The applicant had many legitimate avenues through which to obtain
assistance with his personal problems without committing the misconduct
which led to the separation action under review.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 9 November 1983.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 8 November 1986.  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

__rjw___  __kwl___  __drt___  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.



                                  Raymond J. Wagner
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005386                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050616                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19820223                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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