RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          5 August 2004
      DOCKET NUMBER:  AR2004100681


      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             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Linda M. Barker               |     |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 under other than honorable
conditions be upgraded to honorable.

2.  The applicant states that he was in a fight with his roommate because
his roommate spit chewing tobacco on him.  He goes on to state that he
served honorably and was informed that his discharge would be upgraded to a
general discharge after 6 months.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 January 1981.  The application submitted in this case is
dated 22 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.  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 limitation 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.  He enlisted in the United States Army Reserve (USAR) in Philadelphia,
Pennsylvania, on 9 August 1978, for a period of 6 years and training as a
combat engineer.  He underwent his initial active duty for training (IADT)
at Fort Leonard Wood, Missouri and was released from IADT on 7 December
1978 and was returned to his USAR unit.

4.  On 12 March 1980, he was involuntarily ordered to active duty for a
period of 20 months and 29 days.  He was transferred to Fort Knox,
Kentucky, where he was assigned to an engineer company.

5.  On 12 September 1980, the applicant was confined by military
authorities at the installation detention facility.  However the facts and
circumstances surrounding his confinement are not present in the available
records.

6.  On 19 September 1980, he was transferred to the Army Retraining Brigade
at Fort Riley, Kansas, for confinement and retraining.  Again, the records
are silent as to the circumstances that led to his being transferred to
that facility.
7.  On 14 November 1980, nonjudicial punishment (NJP) was imposed against
him for altering the date of his birth on his military identification card.
 His punishment consisted of a forfeiture of pay, extra duty and
restriction.

8.  On 21 November 1980, NJP was imposed against him for altering a sick
slip.  His punishment consisted of a forfeiture of pay, extra duty and
restriction.

9.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly constituted report of separation (DD Form 214) signed by the
applicant, which shows that he was discharged under other than honorable
conditions at Fort Riley, on 9 January 1981, under the provisions of Army
Regulation 635-200, chapter 14, for unfitness due to his frequent
involvement in incidents of a discreditable nature with civil/military
authorities.  He had served 9 months and 7 days of active service during
his current period of active service and had 21 days of lost time due to
confinement.

10.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
include minor infractions, a pattern of misconduct, frequent involvement in
incidents of a discreditable nature with civil and/or military authorities,
commission of a serious offense, conviction by civil authorities, desertion
or absence without leave.  Although an honorable or general discharge is
authorized, a discharge under other than honorable conditions is normally
considered appropriate.  Additionally, there was not then, nor is there
now, any provisions for an automatic upgrade of such a discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s administrative separation under the provisions of Army
Regulation 635-200, chapter 14, for unfitness due to frequent involvement
in incidents of a discreditable nature with civil/military authorities, was
administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.
3.  The applicant’s contentions and supporting documents have been
considered by the Board.  However, they are not sufficiently mitigating to
warrant relief when compared to his overall record of undistinguished
service.

4.  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.

5.  Records show the applicant should have discovered the alleged injustice
now under consideration on 9 January 1981; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 8 January 1984.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__wtm___  __rtd___  __lmb___  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.



                                  Walter T. Morrison
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100681                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040805                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1981/01/09                              |
|DISCHARGE AUTHORITY     |AR635-200/CH14 . . . . .                |
|DISCHARGE REASON        |FI                                      |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |592/A51.00                              |
|1.144.5100              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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