RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          7 July 2005
      DOCKET NUMBER:  AR20040007967


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 he wants his UOTHC discharge
upgraded and nothing else.  He also states that he was led to believe his
UOTHC discharge would be automatically upgraded 6 months after he had been
separated and he believes the Army should honor that promise.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 February 1981.  The application submitted in this case is
dated 23 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 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 28 November 1979, the applicant enlisted in the United States Army
Reserve Delayed Entry Program (DEP) for 6 years.  On 29 January 1980, he
was discharged from the DEP and enlisted in the Regular Army for 3 years
and:  training in military occupational specialty (MOS) 11B (Infantryman).


4.  On 4 May 1980, following the completion of all required military
training, he was awarded MOS 11B and assigned to Fort Stewart, Georgia with
duties in his MOS.

5.  The applicant left his unit in an absent without leave (AWOL) status
from
16 June to 16 July 1980.  He also left his unit in an AWOL status again
from
16 September 1980 to 19 January 1981 until he was apprehended by civilian
authorities in South Carolina and returned to the Military Personnel
Control Facility, Fort Bragg, North Carolina.
6.  On 23 January 1981, court-martial charges were preferred against the
applicant for the period of AWOL from 16 September 1980 to 19 January 1981.
  The punishment for the period of AWOL from 16 June to 16 July 1980 is not
contained in the available record.

7.  On 28 January 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.

8.  On 29 January 1981, the commander recommended approval of the
applicant's request and the issuance of a UOTHC discharge.  The commander
cited as the bases for the recommendation the applicant's attitude towards
the Army and his lack of rehabilitative potential.  The commander stated he
personally interviewed the applicant and the applicant stated that he went
AWOL due to his dislike for the Army; that he hated everything about the
Army; that he had received an NJP for a prior period of AWOL; that the
pressure at Fort Stewart was more than he could bear.  Therefore, he went
home to South Carolina and found civilian employment at a textile plant.
The applicant stated that he had no desire to remain in the Army; he just
wanted to return to his job and family as soon as possible.  He also stated
that he would not have returned to the Army had he not been arrested and
that he would not hesitate to go AWOL again, if necessary.  The commander
also stated he advised the applicant of the consequences of receiving a
UTOHC discharge and the applicant acknowledged he understood.

9.  On 17 February 1981, 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 which was the highest pay grade that he achieved.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that, on 27 February 1981, he 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 7 months, and
27 days of active military service.  He also had 151 days of lost time due
to being AWOL.

11.  On 26 March 1997, the Army Discharge Review Board denied the
applicant's request for an upgrade of his discharge.

12.  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.

13.  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 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.  The available evidence does not support that the applicant was coerced
into making a request for separation or told that his discharge would be
automatically upgraded.  In fact, the United States Army does not have, nor
has it ever had, a policy to automatically upgrade discharges or to accept
requests for upgrade after a certain amount of time.  Each case is decided
on its own merits when an applicant submits a DD Form 149 (Application for
Correction of Military Record) requesting a change in discharge.  Changes
may be warranted if the Board determines that the characterization of
service, or the reason(s) for discharge, or both, were improper or
inequitable.  The applicant has failed to convince the Board of either.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 26 March 1997.  As
a result, the time for the applicant to file a request for correction of
any error or
injustice to this Board expired on 25 March 2000.  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

__mhm___  __ena___  __cak___  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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007967                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050707                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19810227                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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