RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           1 July 2004
      DOCKET NUMBER:   AR2004100755


      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. G. E. Vandenberg              |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Lana E. McGlynn               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. John T. Meixell               |     |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 discharge be upgraded.

2.  The applicant states he made a mistake of drinking at a young age.

3.  The applicant provides no supporting documentation or contentions.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
6 August 1979, his date of separation.  The application submitted in this
case is dated 22 September 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.  The applicant's records shows that he entered active duty on 5 February
1976, at age 18.  He completed training and was assigned to duty in
Germany.

4.  The applicant received nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice on:

      a.  17 February 1977, for failure to go to his appointed place of
duty;

      b.  20 April 1977, for failure to go to his appointed place of duty;

      c.  22 June 1977, for two charges each of failure to go to his
appointed place of duty and failure to obey a lawful order of a superior
NCO, and a charge of sleeping on duty;

      d.  30 August 1977, for failure to obey a lawful order from a
commissioned officer, for failure to go to his appointed place of duty, and
for breaking restriction; and

      e.  13 October 1978, for two charges of theft of military property
and a charge of possession of marijuana.


5.  Additionally, the record contains a 25 July 1977 NJP action for the
same charges as in the 22 June 1977 NJP.  There is no explanation of this
duplicate action.
6.  On 18 April 1984, a special court-martial found the applicant guilty of
aggravated assault, assault on a noncommissioned officer (NCO), disrespect
to an NCO, and communicating a threat.  The adjudged sentence was
confinement for four months, forfeiture of $275.00 pay per month for six
months, and a bad conduct discharge (BCD).

7.  On 17 April 1979, the Army Court of Military Review affirmed and
approved the findings and sentence.

8.  The applicant waived his right to appeal to the United States Court of
Military Appeals.

9.  The applicant was discharged with a BCD on 6 August 1979 pursuant to
Special Court-Martial Order Number 113, dated 9 July 1979.  He had 3 years,
1 month, and 16 days of creditable service with 115 days of lost time and
158 days of excess leave.

10.  On 24 June 1992 the ADRB denied the applicant's request for an
upgrade.

11.  The Manual for Courts-Martial, as then in effect, and the edition
currently effective, both state that voluntary intoxication not amounting
to legal insanity, whether caused by alcohol or drugs, is not an excuse for
an offense committed while in that condition.  That this standard of
conduct is accepted not only by the military but by society as a whole is
demonstrated by the fact that drunk drivers are held legally responsible
for the results of their behavior even though they are shown to be
alcoholic.

12.  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.  Trial by court-martial was warranted by the gravity of the offenses
charged.  The conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.
2.  The applicant has provided no documentation or rationale to support any
change in the characterization of his discharge.  He also provided no
evidence or argument that alcohol was involved in any of the incidents that
lead to his discharge or that this would have mitigated his misconduct.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 June 1992.  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 June 1995.  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

__LEM__  ___LDS__  __JTM_ _  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 the 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 insufficient
evidence to show 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.




            _      Lana E. McGlynn__________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100755                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144 upgrade                             |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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