RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 May 2005
      DOCKET NUMBER:  AR20040006883


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 from under than honorable
conditions (UOTHC) discharge.

2.  The applicant states, in effect, that at the time of his discharge, he
had completed 3 years of honorable service.  He claims that after
reenlisting, he was uncomfortable and frustrated about staying at Fort
Knox, Kentucky and not going to Germany.  He claims to have been told he
could get his discharge upgraded after a period of time.

3.  The applicant provides a self-authored statement in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 5 October 1983.  The application submitted in this case is
dated
28 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 records show that he enlisted in the Army and entered
active duty on 13 February 1980.  He completed basic combat training and
advanced individual training (AIT) at Fort Knox, Kentucky.  Upon completion
of AIT, he was awarded military occupational specialty (MOS) 19E (Armor
Crewman), and the highest rank he held while serving on active duty was
specialist four (SP4).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal 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).

5.  On 11 March 1982, the applicant accepted NJP for wrongfully using
provoking words and for willfully disobeying a lawful order.  His
punishment for these offenses included a reduction to private first class
(PFC), which was suspended until 10 June 1982, a forfeiture of $100.00 pay
per month for one month and extra duty for 5 days.

6.  On 13 July 1983, the applicant departed absent without leave (AWOL)
from his unit at Fort Knox.  He was dropped from the rolls of the
organization on
12 August 1983.  He remained AWOL for 34 days until returning to military
control at Fort Knox on 16 August 1983.

7.  On 19 August 1983, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for violating Article 86 of
the UCMJ by being AWOL from 13 July through 16 August 1983.

8.  On 22 August 1983, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights that were
available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

9.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be 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 that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

10.  On 31 August 1983, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.
On 5 October 1983, the applicant was discharged accordingly.

11.  The DD 214 he was issued upon his discharge confirms he completed a
total of 3 years, 6 months and 20 days of creditable active duty service
and that he had accrued 34 days of lose time due to AWOL.

12.  On 20 November 1984, the Army Discharge Review Board (ADRB), after
carefully evaluating the applicant’s case, concluded that his discharge was
proper and equitable, and it voted to deny his request for an upgrade of
his discharge.

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 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.

14.  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 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 contention that his discharge should be upgraded based
on his 3 years of prior honorable service was carefully considered.
However, this factor is not sufficiently mitigating to warrant granting the
requested relief.

2.  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.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process and his discharge
accurately reflects his overall record of service.

3.  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.
4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 20 November 1984.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 19 November 1987.  However, he 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MVT _  ___JTM _  ___LGH_  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.




                                  _____Margaret V. Thompson___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006883                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-05-24                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1983/10/05                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10 . . . . .             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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