RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 August 2005
      DOCKET NUMBER:  AR20040011262


      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:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 to
under honorable conditions discharge.

2.  The applicant states, in effect, that the US Army did not treat him
properly and that he should have been given medical treatment and
counseling.

3.  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 15 May 1979, the date he was released from active duty.
The application submitted in this case is dated 24 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 enlisted on 24 June 1975.  He
completed the required training and was awarded military occupational
specialty 16R10 (Air Defense Artillery Crewman).  On 4 January 1978, the
applicant was honorably discharged after 2 years, 6 month and 11 days of
honorable active duty service.  On 5 January 1978, the applicant reenlisted
for 6 years. The highest he attained was pay grade E-4.

4.  On 4 March 1978, the applicant accepted nonjudicial punishment (NJP)
for failure to go to his appointed place of duty.  His imposed punishment
was a forfeiture of $100.00 pay, 14 days extra duty and a reduction to pay
grade
E-3 (suspended for 3 months).

5.  On 16 August 1978, the applicant accepted NJP for being absent without
leave (AWOL) from 7 to 8 August 1978.  His imposed punishment was a
reduction to pay grade E-2 (suspended until 13 November 1978), a forfeiture
of $100.00 pay per month for 2 months and confinement for 10 days in a
correctional custody facility.
6.  On 25 August 1978, the applicant voluntarily admitted himself to the
Army’s drug treatment program for dependence on psycho stimulants and
improper use of Marijuana.

7.  On 13 October 1978, the applicant received a Bar to Reenlistment
Certificate. The applicant’s bar to reenlistment was based on his record of
NJP’s, his record of non payment of debt and his poor duty performance.

8.  On 27 November 1978, the company commander recommended that the
applicant be elimination from service under the provisions of Army
regulation 635-200, chapter 13 for unsuitability.  The company commander
recommendation was disapproved.  On 20 December 1978, the company commander
requested that the applicant be rehabilitative transferred.  On
26 December 1978, the request approved.

9.  On 28 December 1978, the applicant accepted NJP for disobeying a lawful
order.  His imposed punishment was a reduction to pay grade E-2, 7 days
restriction and 7 days extra duty.

10.  On 19 March 1979, the applicant was reported for being AWOL.  He
remained AWOL until he was apprehended by military police in the Post
Exchange parking lot.  The applicant had in his possession 3 bags of
suspected Marijuana and 7 plastic vials of a white powder substance.  The
court-martial charge sheet is missing from the applicant’s file.

11.  On 13 April 1979, 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.
12.  On 20 April 1979, the applicant was physically examined by a medical
doctor and was found physical fit for retention.  On the same day, the
applicant was psychiatrically cleared for separation.

13.  On 2 May 1979, the separation authority approved the applicant’s
request for discharge and directed that he receive a Discharge Certificate
Under Other Than Honorable Conditions and that he be reduced to the lowest
enlistment grade.
On 15 May 1979, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued confirms he completed 1 year,
3 months and 19 days of creditable active military service during this
enlistment and 22 days of time lost.

14.  On 4 August 1982, 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.

15.  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.

16.  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 contentions that the Army did not treat him properly and
that he should have been given medical treatment and counseling was
carefully considered and found to have insufficient merit in this case.
There is no evidence in his record nor has the applicant provided any
evidence in support of his allegation.  Therefore, given the circumstances
in this case and his overall undistinguished record of service, there is
insufficient evidence to support his request at this time.

2.  The evidence of record confirms that the applicant was over 25 years
old, 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 4 August 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 3 August 1985.  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

__MHM _  __JTM  __  __JBG   _  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                 |AR20040011262                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050811                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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