RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 August 2005
      DOCKET NUMBER:  AR20040010461


      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 L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Kenneth L. Wright             |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 be upgraded.

2.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 October 1982.  The application submitted in this case
is dated
8 November 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 originally enlisted on 6 October
1972. He completed the required training and was awarded military
occupational specialty 13B10 (Cannon Crewman).  On 30 August 1974, the
applicant was honorably discharged and on 31 August 1974, he reenlisted for
6 years.  The applicant’s DD Form 214, that he was issued at the time shows
that he was awarded:  The National Defense Service Medal, the Army
Commendation Medal and the Good Conduct Medal (3rd Award).

4.  On 24 June 1980, the applicant reenlisted for a period of 3 years, at
the time of his enlistment he was 26 years old, with 7 years, 8 months and
17 days of prior active service and had attained the rank of sergeant pay
grade E-5.

5.  On 9 February 1981, while assigned to unit in the Republic of Korea,
the applicant accepted nonjudicial punishment (NJP) for wrongfully
communicating a threat to injure a fellow Soldier.  His imposed punishment
was a forfeiture of $400.00 pay and 60 days restriction.
6.  On 16 November 1981, the applicant accepted NJP for a pass violation.
His punishment was a reduction to pay grade E-4.

7.  On 16 February 1982, the applicant accepted NJP for a pass violation.
His punishment was a reduction to pay grade E-3.

8.  On 25 June 1982, the applicant was convicted by a Summary Court-Martial
of disobeying a lawful order from his superior Noncommissioned Officer, of
being disrespectful in language toward a superior Noncommissioned Officer
and for a liberty passes violation.  He was sentenced to a forfeiture of
$400.00 pay and
60 days restriction.

9.  On 24 August 1982, Special Court-Martial charges were preferred against
the applicant of two specifications of wrongfully purchasing in excess of
$911.00 worth of certain merchandise when only authorized $275.00 and for
the solicitation of another Soldier to wrongfully transfer the duty –free
goods.

10.  On 7 September 1982, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, the
effects of a discharge Under Other Than Honorable Conditions (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 discharge.

11.  On 8 September 1982, the Brigade and the Battalion Commander
recommended a trial by Special Court-martial empowered to adjudge a Bad
Conduct Discharge.

12.  On 17 September 1982, the separation authority approved the
applicant’s request for discharge and directed that he receive a Discharge
Certificate Under Other Than Honorable Conditions.  On 1 October 1982, the
applicant was discharged accordingly.  The separation document (DD Form
214) he was issued confirms he completed 9 years, 11 months and 26 days of
creditable active military service.

13.  On 14 November 1983, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and voted to deny
the applicant’s request for an upgrade of his discharge.

14.  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.

15.  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 evidence of record confirms that the applicant was over 30 years
old with over 9 ½ years of military service when he was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge.  The evidence of record also confirms that 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 service.  Therefore the applicant is not entitled to an
upgrade of his discharge.

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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 14 November 1983.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 13 November 1986.  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

__KLW__  __PHM__  __BJE___  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.


                                     ____Barbara J. Ellis____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040010461                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1983/10/01                              |
|DISCHARGE AUTHORITY     |AR635-200,chp10 . . . . .               |
|DISCHARGE REASON        |In lieu of court-martial                |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.189    |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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