RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 July 2005
      DOCKET NUMBER:  AR20040007235


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Stanley Kelley                |     |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 discharge be upgraded.

2.  The applicant states, in effect, that the incident that led to his
discharge was just a misguided practical joke.  He contends that based on
the length of time since its occurrence and the stress incurred since, he
should receive an upgrade.

3.  The applicant provides a personal statement and copy of his DD Form 214
(Certificate of Release or Discharge).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that due consideration be given to the applicant's
request.

2.  Counsel supports the applicant's request and notes that the applicant
admits to a lapse of judgment.

3.  Counsel provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 August 1981, the date of his discharge.  The application
submitted in this case is dated 8 September 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 he entered active duty on 10 July 1979,
completed training, and was awarded the military occupational specialty
(MOS) 13B (Cannon Crewman).

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code
of Military Justice, for wrongful possession of marijuana, on 6 February
1980, and for failure to go to his appointed place of duty, on 15 May 1980
and 29 April 1981.

5.  The applicant's record contains six DA Forms 3975 (Military Police
Reports) citing him as the perpetrator of the incidents: 4 December 1980,
for a domestic disturbance culminating in assault; 2 March 1981, for
burglary; 9 May 1981, for a domestic disturbance; 8 June 1981, for driving
the wrong way on a one way street resulting in an accident; 14 June 1981,
for a domestic disturbance; and 15 June 1981, larceny of private property
(four hubcaps).

6.  Although the documentation related to the discharge processing is not
of record, the available evidence indicates shows that the applicant
requested to be discharged under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service in lieu of trial by court-martial.


7.  On 21 August 1981 the applicant received an under other than honorable
conditions discharge under the provisions Army Regulation 635-200, chapter
10. He had 2 years, 1 month, and 11 days of creditable service.

8.  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.

9.  On 7 February 1983, the Army Discharge Review Board (ADRB) denied the
applicant's request to upgrade his discharge and to change the narrative
reason for the discharge.

10.  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.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time. The character of the discharge is commensurate with
his overall record.

2.  The simple passage of time is insufficient reason to grant the
requested relief.

3.  Record shows the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 7 February 1983.  As a
result, the time for the application to file a request for correction of
any error or injustice to this Board expired on 6 February 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JNS___  _____SLP __SK___  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.




            _    _John N. Slone___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040007235                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050712                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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