RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         30 June 2005
      DOCKET NUMBER:  AR20040008520


      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. Melinda M. Darby              |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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, that his under other than honorable
conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, he doesn’t believe that mistakes he
made as a teenager should be held against him.  He is fully apologetic for
the victim that he stole from 30 years ago, but he can’t change the past.
He could only act more responsible in the future.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 11 January 1979.  The application submitted in this case
is dated
4 October 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 Army and entered
active duty on 6 January 1977.  He was trained in, awarded and served in
military occupation specialty (MOS) 94B10 (Cook).  His Personnel
Qualification Record (DA Form 2-1) shows, in item 18 (Appointment and
Reductions), that he was promoted to private first class (PFC) on 1
February 1978, and that was the highest rank he attained while serving on
active duty.

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) on two separate occasions, and one period of his
being absent without leave (AWOL).

5.  While stationed in Germany with Battery B, 1st Battalion, 75th Field
Artillery, the applicant departed AWOL from his unit on 26 June 1978.  He
remained away for 2 days and returned to military control on 27 June 1978.

6.  On 8 August 1978, the applicant accepted NJP for being disorderly.  His
punishment included a forfeiture of $60.00 and 14 days of extra duty.  On
6 December 1978, he accepted NJP for stealing a wallet containing
approximately $100.00.  His punishment included a reduction to private/E-1
(PV1), a forfeiture of $150.00 per month for two months, and 15 days of
restriction and extra duty.

7.  On 8 December 1978, the unit commander notified the applicant he was
initiating separation action on him under the provisions of chapter 14,
Army Regulation 635-200.  The unit commander cited the applicant’s pattern
of misconduct as the reason for taking the action.

8.  On 11 December 1978, the applicant consulted with legal counsel and was
advised of the basis for contemplated separation and its effects, the
rights available to him and of the effect of a waiver of those rights.
Subsequent to counseling, the applicant elected not to submit a statement
in his own behalf.

9.  On 22 December 1978, the separation authority directed the applicant’s
separation under the provision of paragraph 14-33b (1), Army Regulation
635-200, and that he receive an UOTHC discharge.  On 11 January 1979, the
applicant was discharged accordingly. The separation document (DD Form 214)
he was issued at the time confirms that he completed a total of 2 years and
4 days of creditable active military service, that he accrued 2 days of
lost time due to AWOL and that he held the rank of PV1 on the date of his
separation.

10.  There is no indication that the applicant applied to the army
discharge review board for an upgrade of his discharge within its 15-year
statute of limitation.

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.  An UOTHC discharge is normally
appropriate for members separated under these provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the mistakes he made as a teenager
should not be held against him was carefully considered.  However, the
evidence of record confirms his separation processing was accomplished in
accordance with the applicable regulation.  All requirements of law and
regulation were met and his rights were fully protected throughout the
separation process.
2.  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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 January 1979.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 10 January 1982.  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

___MMD_  __TEO__  ___YM__  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.




                                  _____Melinda M. Darby ___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008520                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/30                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/01/11                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch14 . . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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