RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          17 August 2004
      DOCKET NUMBER:  AR2004100753


      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. Robert J. McGowan             |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert J. Osborn, II          |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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 under other than honorable conditions
(UOTHC) discharge be changed to a "medical discharge."  In effect, he is
requesting that the characterization of his service be changed from UOTHC
to general or honorable, and that his narrative reason for separation be
changed from "Administrative Discharge – Conduct Triable by Court-Martial"
to "Physical Disability."

2.  The applicant makes no statements.

3.  The applicant provides no documents; however, he alludes to documents
provided for a previous review.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 January 1980, the date of separation. The application
submitted in this case is dated 28 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.  A National Guardsman, the applicant was involuntarily ordered to active
duty from the North Carolina Army National Guard on 27 April 1978 due to
continued absences from unit training assemblies.  He was ordered to serve
on active duty for a period of 24 months less the active duty and annual
training time already served by him.

4.  As an active duty soldier, the applicant was a habitual absentee (AWOL,
or absent without leave).  On 16 March 1979, he departed Fort Bragg, North
Carolina in an AWOL status and remained so absent until 10 December 1979
when he surrendered to civil authorities at Rocky Mount, North Carolina.
He was subsequently returned to military control at Fort Bragg.  On 11
December 1979, court-martial charges were preferred against him for AWOL.

5.  After consulting with legal counsel, the applicant voluntarily
requested discharge under the provisions of chapter 10, AR 635-200 for the
good of the service, in lieu of trial by court-martial.  On 3 January 1980
the appropriate authority approved the applicant’s request for discharge
and directed issuance of a UOTHC.  Accordingly, on 15 January 1980, the
applicant was discharged after completing 9 months and 25 days of active
military service and accruing 256 days of lost time.

6.  The applicant's medical records are unremarkable and show that he was
fully qualified for separation.  He had multiple mental status evaluations
which found him to be free of mental disease or defect and qualified for
separation.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade.  The ADRB, after considering his case on 24 April
1995, denied his request.

8.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions
of chapter 10, AR 635-200, for the good of the service, to avoid trial by
court-martial, was administratively correct and in conformance with
applicable regulations.  There is no indication that the request was made
under coercion or duress.

2.  The applicant has not provided, and the record does not contain,
evidence that the applicant suffered from a physical disability that would
disqualify him from continued active Federal service.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 April 1995.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 23 April 1998.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__slp___  __rjo___  __ecp___  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.



                                  Shirley L. Powell
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100753                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040817                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19800115                                |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |180.0000                                |
|2.                      |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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