RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           03 AUGUST 2004
      DOCKET NUMBER:  AR2004100485


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Gail Wire                     |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 records be corrected by upgrading his
discharge.

2.  The applicant states that he is disabled, that he was struck by a car
in 1985 which left him paralyzed.  He has been unable to work and support
himself, and gets by on his social security disability.  He has several
other serious health problems.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge form Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 November 1979.  The application submitted in this case is
dated 21 October 2003.

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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (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 Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR 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.

3.  The applicant enlisted in the Regular Army on 7 December 1976, for a
period of 3 years.

4.  Between April 1978 and September 1979, the applicant received seven
nonjuducial punishments, under the provisions of Article 15, Uniform Code
of Military Justice for failure to go to his appointed place of duty.  His
punishments included reductions, restriction, extra duty, and forfeitures
of pay.

5.  On 18 October 1979, the applicant was notified by his commander that he
was recommending he be eliminated from the service under the provisions of
Army Regulation 635-200, chapter 14, for misconduct.
6.  On 25 October 1979, the applicant was convicted by a summary court-
martial of failure to go to his appointed place of duty on 10 September
1979.  His sentenced was reduction to Private E-1.

7.  The applicant acknowledged that he had been advised by counsel of the
basis for his commander’s intent to separate him for misconduct.   He
further acknowledged that he understood that if he received an under other
than honorable conditions discharge he may encounter substantial prejudice
in civilian life, and may be ineligible for many or all benefits as a
Veteran under both Federal and State laws.

8.  On 15 November 1979, the appropriate separation authority approved the
applicant’s discharge, and directed the issuance of an under other than
honorable conditions discharge.

9.  On 21 November 1979, the applicant was discharged under the provisions
of Army Regulation 635-200, chapter 14, for misconduct.  His DD Form 214
(Certificate of Release of Discharge from Active Duty) indicates he had 2
years,
8 months, and 19 days of active service, and 88 days of lost time.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

11.  On 3 May 1983, the Army Discharge Review Board (ADRB) denied the
applicant’s request to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  It is unfortunate that the applicant is now disabled, however, there is
no evidence to justify granting the relief requested.
4.  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 requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 May 1983, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on            2 May 1986.  However, 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE  __  ___JM __  ___GW__  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.




            _____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100485                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040803                                |
|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.                      |                                        |


-----------------------
[pic]