RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:              10 May 2005
      DOCKET NUMBER:     AR20040005555


      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:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Antonio Uribe                 |     |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 (HD).

2.  The applicant states, in effect, that he is not the same person he was
when he served in the Army.  He is married and has four very good children,
and is a strong supporter of our troops.

3.  The applicant provides no documentary evidence in support of his claim.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 20 March 1978.  The application submitted in this case is
dated
4 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 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’s record shows that he enlisted in the Regular Army and
entered active duty on 7 August 1975.  He was trained in, awarded and
served in military occupational specialty (MOS) 11C (Indirect Fire
Infantryman), 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.  The record reveals
a 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 seven separate occasions.

5.  On 16 March 1977, the applicant accepted NJP for wrongfully introducing
a habit forming drug into a military unit.  His punishment for this offense
included a reduction to private/E-2 (PV2).

6.  On 25 May 1977, the applicant accepted NJP for failing to go to his
appointed place of duty and for showing verbal disrespect to a superior
noncommissioned officer (NCO).  His punishment for these offenses included
a reduction to private/E-1 (PV1).

7.  The applicant also accepted NJP on the following four dates for the
offenses indicated:  14 September 1977, for failing to go to his appointed
place of duty;
12 October 1977, for violating a lawful general regulation by possessing
marijuana; 21 November 1977, for failing to go to his prescribed place of
duty; and 14 December 1977, for failing to go to his appointed place of
duty.

8.  On 2 December 1977, the unit commander notified the applicant that he
was being considered for discharge under the provisions of chapter 13, Army
Regulation 635-200, by reason of misconduct.  The applicant after being
advised of the basis for the contemplated separation action and its
effects, elected to waive his right to have his case considered by a board
of officers.  He also waived his right to personal appearance before a
board of officers and to representation by counsel. The applicant further
elected not to submit a statement in his own behalf.

9.  The unit commander submitted a recommendation that the applicant be
eliminated from service for misconduct.  The unit commander cited the
applicant’s record of NJP, the applicant’s unacceptable conduct and his
failure to respond to counseling as the basis for taking the action.

10.  On 17 January 1978, while his separation packet was being processed,
the applicant accepted NJP for wrongfully damaging a cigarette machine and
for stealing cigarettes.

11.  On 6 March 1978, the separation authority directed the applicant be
separated under the provisions of chapter 13, Army Regulation 635-200 and
that he receive an UOTHC discharge.  On 20 March 1978, the applicant was
discharged accordingly.

12.  The separation document issued to the applicant upon his separation
confirms he held the rank of PV1 and had completed a total of 2 years, 7
months and 14 of active military service.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board’s
15-year statute of limitations.

14.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided for the separation of members for misconduct based on frequent
involvement in incidents of a discreditable nature with civil and/or
military authorities.  An UOTHC discharge was normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded
because he is not the same person now that he was when he served and
because he is a strong supporter of the troops were carefully considered.
However, these factors are not sufficiently mitigating to warrant the
requested relief.

2.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with the regulation in effect at the time.
All requirements of law and regulation were met and the rights of the
applicant were fully protected throughout the separation process.

3.  Although the applicant’s post service conduct is admirable, this factor
alone does not provide a basis for upgrading his discharge at this late
date.  The record confirms his discharge accurately reflects his overall
record of undistinguished service.  As a result, it would not be
appropriate to grant the requested relief at this time.

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 20 March 1978.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on
19 March 1981.  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

___BPI__  ___AU___  ___JLP _  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.




            ____Jennifer L. Prater____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005555                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/10                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1978/03/20                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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