RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 August 2005
      DOCKET NUMBER:  AR20040010954


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 discharge characterized as under other
than honorable conditions (UOTHC) be upgraded.

2.  The applicant states that his UOTHC should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 August 1978, the date of his discharge.  The application
submitted in this case is dated 22 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 military records show he entered active duty on
16 September 1976, as a material supply specialist.  He was promoted to
specialist four (SPC/E-4) on 6 January 1978.

4.  The facts and circumstances pertaining to the applicant's discharge are
not present in the available records.  However, his DD Form 214 shows that
on 16 August 1978, he was discharged under the provisions of Army
Regulation       635-200, chapter 10, for the good of the service in lieu
of trial by court-martial, in the pay grade of E-1.  He was furnished a
UOTHC Discharge Certificate.  He had a total of 1 year, 11 months, and
1 day of creditable service.

5.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.



6. Army Regulation 635-200 sets forth the basic authority for 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.

7.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to
benefits provided by law.  The honorable characterization is appropriate
when the quality of the member’s service generally has met the standards
of acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

8.  The above referred to regulation also defines a general discharge as
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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s administrative separation was accomplished in compliance
with applicable regulations with no procedural errors, which would tend to
jeopardize his rights.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  It is apparent, from the authority for the applicant's discharge,
that charges were preferred against the applicant; however, these
documents are not available for review and the applicant failed to
provide this information to the Board.  There is no evidence, and the
applicant has provided no evidence, upon which to base an upgrade of his
UOTHC.

4.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 August 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 15 August 1981.  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

___pms _  ____lgh__  ____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.




                                  __________Paul M. Smith________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR200400 10954                          |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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