RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 August 2005
      DOCKET NUMBER:  AR20040010342


      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. Judy Blanchard                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 discharge under other than
honorable conditions (UOTHC) be upgraded.

2.  The applicant provides no statement on his DD Form 149.

3.  The applicant provides in support of his application a Department of
Veterans Affairs, (Statement in Support of Claim Form).  Which states, in
effect, that he humbly request an upgrade of his discharge because he was
unable to adapt to military life and that his discharge was in the best
interest of service.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 2 August 1977.  The application submitted in
this case is dated
20 May 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 Regular Army on
16 February 1977.  He completed the required training and was awarded
military military occupational specialty 11D10 (Armor).  On 1 March 1977,
the applicant was reported for being absent without leave (AWOL).  He was
returned to military control on 14 March 1977.

4.  On 17 March 1977, the applicant accepted nonjudicial punishment for
being AWOL from 1 to 13 March 1977.  His punishment was a forfeiture of
$85.00 pay.

5.  On 2 April 1977, the applicant again was reported for being AWOL.  He
was returned to military control on 20 June 1977.

6.  On 22 June 1977, court-martial charges were preferred against the
applicant for being AWOL from 2 April to 19 June 1977.

7.  On 27 June 1977, the applicant was found physically fit for retention.

8.  On 5 July 1977, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, the effects of
a discharge UOTHC and of the rights available to him.  The applicant
voluntarily requested discharge for the good of the service, in lieu of
trial by court-martial.  In his request for discharge, he acknowledged that
he was guilty of the charge against him or of a lesser included offense
therein contained which also authorizes the imposition of a bad conduct or
dishonorable discharge.  He further stated that under no circumstances did
he desire further rehabilitation, for he had no desire to perform further
military service.  He also stated his understanding 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.  He
further indicated that he understood that he could encounter substantial
prejudice in civilian life by reason of an UOTHC.

9.  On 19 July 1977, the separation authority approved the applicant’s
request for discharge and directed that he receive a Discharge Certificate
under Other Than Honorable Conditions.  On 2 August 1977, the applicant was
discharged accordingly.  The separation document (DD Form 214) he was
issued confirms he completed 2 months and 16 days of creditable active
military service and accrued 92 days of time lost due to AWOL.

10.  On 14 August 1981, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

11.  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. However, at the time of the applicant's separation the
regulation provided for the issuance of a Discharge Certificate UOTHC.

12.  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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 contentions that he could not adapt to military life
was carefully considered and found to have no merit in this case.  There is
no evidence nor has the applicant provided any evidence to show that he
asked for help at anytime before deciding to go AWOL.  Therefore, given the
circumstances in this case and his overall undistinguished record of
service, there is insufficient evidence to support this claim.

2.  The evidence of record confirms that 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 short and undistinguished
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 14 August 1981.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 13 August 1984.  However, 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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JRM   _  __WDP _  __RLD __  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.


                                    __Mr. William D. Powers__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010342                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050802                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1977/08/02                              |
|DISCHARGE AUTHORITY     |AR635-200, chp10 . . . . .              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.189    |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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