RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011659


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 be upgraded.

2.  The applicant states that he was told his discharge could be upgraded
to honorable after 90 days.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 May 1983.  The application submitted in this case is
dated
15 December 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.  Records available to the Board indicate the applicant was a member of
the United States Army Reserve when he enlisted in the Regular Army and
entered active duty on 25 February 1979.  As a result of his prior training
he was assigned to an engineer battalion in Germany in March 1979.

4.  By October 1980 the applicant had been promoted to pay grade E-5 and in
February 1982 he was awarded the Army Good Conduct Medal.  On 26 April 1982
he reenlisted.

5.  Although the details of charges preferred against the applicant were
not in records available to the Board, on 12 May 1983 the applicant
submitted a voluntary request for separation under the provisions of Army
Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  His
request notes he was charged with two specifications of failure to repair
and one of disobeying a lawful order.


6.  In submitting his request for discharge, the applicant consulted with
legal counsel and acknowledged he understood the nature and consequences of
the undesirable discharge which he might receive.  He indicated he
understood he could be denied some or all veterans' benefits as a result of
his discharge and that he may be deprived of rights and benefits as a
veteran under both Federal and State law.  He also acknowledge that he
understood that there was no automatic upgrading nor review by any
government agency of a less than honorable discharge and that he must apply
to the Army Discharge Review Board or the Army Board for Correction of
Military Records if he wished a review of his discharge.  He noted that he
realized that this act of consideration by either board did not imply that
his discharge would be upgraded.  He did not submit any statements on his
own behalf.

7.  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, voluntarily 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.

8.  There is no indication the applicant applied to the Army Discharge
Review Board to have his discharge upgraded.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the Board concludes that
the applicant's administrative separation was accomplished in accordance
with applicable laws and regulations.

2.  The applicant’s contention that he was told his discharge could be
upgraded after 90 days is not supported by any evidence submitted by him,
or contained in records available to the Board.  The evidence available to
the Board indicates that as part of his voluntary request for discharge the
applicant acknowledged he understood there was no automatic upgrading of
his discharge.

3.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that request requirement.


4.  The actions by the Army in this case were proper, and there is no doubt
to be resolved in favor of the applicant.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 May 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
23 May 1986.  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

__JH____  __TO ___  __PM ___  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.




                                  _______James Hise_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011659                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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