RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 September 2004
      DOCKET NUMBER:  AR2004100835


      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. Klaus P. Schumann             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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, in effect, that his under other than honorable
conditions (UOTHC) discharge from the Army National Guard (ARNG) be
upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he entered the ARNG in 1975 and
served honorably for the first 5 and 1/2 years.  However, he experienced
marital problems that resulted in his divorce in 1980.  He claims to have
been unable to handle the situation he was in and turned to alcohol and
drug use to deal with the pain.  This resulted in the conduct that resulted
in his UOTHC discharge in 1981. He also states that since leaving the Army,
his life has drastically changed.  He obtained medical treatment and has
not touched drugs and has limited his alcohol use since.  He indicates he
was unaware of the type of discharge he received and only found out
recently, when applying for veterans’ benefits, that he received an UOTHC
discharge.  He states that had he know he received this type of discharge,
he would have dealt with it much sooner.

3.  The applicant provides a self authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 January 1981.  The application submitted in this case
is dated 4 November 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 record shows he enlisted in the ARNG on 27 January
1975, He completed his initial active duty for training between 9 May and 6
September 1975 and was awarded military occupational specialty (MOS) 11B
(Infantryman).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows he
served with the 182nd Infantry, Newburg, Oregon, until 29 September 1980,
at which time the unit was reorganized and redesignated the 249th Infantry.


5.  Item 9 (Awards and Decorations) of the applicant’s DA Form 2-1
indicates that during his tenure in the ARNG, the applicant earned the
Sharpshooter Qualification Badge with Rifle Bar.  No acts of valor,
significant achievement, or service warranting special recognition are
documented in the record.

6.  Item 18 (Promotions and Reductions) of the applicant’s DA Form 2-1
shows he was promoted to the rank of specialist (SPC) on 1 April 1977 and
this is the highest rank he attained during his military service.  It also
confirms that on 1 June 1980, he was reduced to the rank of private two
(PV2) for misconduct.

7.  The record contains several letters of notice of unsatisfactory
participation for 14 unexcused absences between 17 May and 26 October 1980.
 These notices were sent to the applicant by registered mail.  However,
there is no indication he ever responded to them or provided any
justification for why these absences should be excused.

8.  On 1 December 1980, the unit commander notified the applicant of his
proposal that the applicant be separated under the provisions of Army
Regulation 135-178, based on his accruing more than nine unexcused absences
during a
12-month period.  This notification also informed the applicant of his
rights and provided him the opportunity to consult with legal counsel.  The
applicant was further advised that his separation under these provisions
could result in his receiving an UOTHC discharge.  On 8 December 1980, the
applicant signed the certified mail receipt confirming he received this
notification.  However, there is no indication that he ever responded.

9.  On 22 January 1981, the applicant was discharged from the ARNG with an
UOTHC discharge and transferred to the United States Army Reserve (USAR) to
complete his remaining service obligation.

10.  On 29 June 1982, the applicant was discharged from the USAR, UOTHC,
via Orders Number D-06-903626, issued by the Reserve Components Personnel
and Administration Center (RCPAC), St. Louis, Missouri.

11.  There is no evidence showing the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade to his discharge within the 15-
year statute of limitations.
12.  Army Regulation 135-178 (Separation of Enlisted Personnel) provides
for the separation of enlisted personnel of the Army Reserve and Army
National Guard.  Chapter 7 of the regulation, in effect at the time,
governed separation for acts or patterns of misconduct, including
unsatisfactory participation.  The regulation provided that the separation
authority could direct separation for unsatisfactory performance, or
convene a board of officers to determine whether the service member should
be separated for misconduct.  Army policy, in effect at the time, stated
that the characterization of service for members separated under these
provisions would normally be UOTHC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claims that he was experiencing marital problems at the
time of his discharge that resulted in his use of drugs and alcohol, which
contributed to the misconduct that resulted in his discharge, and that his
post service conduct has been good were carefully considered.  However,
these factors are not sufficiently mitigating to warrant the requested
relief.

2.  The evidence of record confirms the applicant’s separation processing
was conducted in accordance with the applicable law and regulations.
Further, all requirements of law and regulation were met and the rights of
the applicant were fully protected throughout the separation process.
Therefore, there is an insufficient evidentiary basis to support an upgrade
of his discharge at this late date.

3.  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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 January 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 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

_MDM___  __KAH__  __RLD __  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.




            _    MARK D. MANNING___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100835                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/09                                 |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1981/01/22                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |Unsat Part                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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