RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 April 2005
      DOCKET NUMBER:  AR20040007745


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Mr. Peter B. Fisher               |     |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
discharge be upgraded to a general (under honorable conditions) discharge.

2.  The applicant states, in effect, that he regrets any unfavorable
behavior on his behalf.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 May 1981.  The application submitted in this case is dated
24 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 enlisted in the Regular Army on 26 July 1978 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 76D (Material Supply
Specialist).

4.  On 23 April 1980, the applicant was convicted by a special court-
martial for stealing three rings of a value of more than $1,000.00.  He was
sentenced to be confined at hard labor for three months.

5.  On 22 May 1980, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be
at his prescribed place of duty and sleeping on a bunk while posted as
fireguard.

6. On 25 August 1980, the applicant accepted NJP under Article 15, UCMJ for
being absent without leave (AWOL) for the period 5 August 1980 through
18 August 1980.



7.  On 12 January 1981, the applicant accepted NJP under Article 15, UCMJ
for being AWOL for the period 29 December 1980 through 2 January 1981.

8.  On 11 March 1981, the applicant accepted NJP under Article 15, UCMJ for
being AWOL for the period 21 February 1981 through 4 March 1981.

9.  The applicant's discharge proceedings are not available.

10.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  However, his DD Form 214
shows that he was discharged on 21 May 1981 under the provisions of chapter
14 of Army Regulation 635-200 (Personnel Separations) by reason of
"Misconduct - frequent incidents of a discreditable nature with civil or
military authorities" with a characterization of under other than honorable
conditions.  The applicant completed 2 years, 8 months, and 17 days of
creditable active service with 38 days of lost time due to AWOL and
confinement.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed and an unfit medical condition is
not the direct or substantial contributing cause of his misconduct.  A
discharge under other than honorable conditions is normally appropriate for
a Soldier discharged under this chapter.

12.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he was convicted by a special court-
martial of theft, received four Article 15s, and had three instances of
AWOL.  Based on these facts, the applicant’s service clearly did not meet
the standards of acceptable conduct and performance of duty for Army
personnel that are required for issuance of a general (under honorable
conditions) discharge.

2.  In the absence of evidence to the contrary, it is presumed that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 20 May 1984.  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

__JI____  __REB __  __ PBF __  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 Infante _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007745                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |28 April 2005                           |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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