RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          31 August 2004
      DOCKET NUMBER:  AR2004101383


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Sloane                |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |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 be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was treated badly when the
Army discovered he planned to take action in regard to poor medical
treatment he received by military medical personnel.  He claims the poor
medical treatment he received caused him to go absent without leave (AWOL)
and was the reason for the misconduct that resulted in his discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 August 1980.  The application submitted in this case is
dated
17 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 that he enlisted in the Regular Army and
entered active duty on 23 May 1978.  He was trained in, awarded, and served
in military occupational specialty (MOS) 36K (Tactical Wire Operations
Specialist) and the highest rank he attained while serving on active duty
was private/E-2 (PV2).

4.  The applicant’s record documents no acts of valor or significant
achievement, but does reveal a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ on three separate
occasions between 24 August 1979 and 10 July 1980.  Further, the record
shows that during his active duty tenure he accrued a total of 78 days of
time lost due to being AWOL.

5.  On 21 February 1980, a Charge Sheet (DD Form 458) was prepared
preferring the following three court-martial charges against the applicant
for the offenses indicated:  Charge I, for violating Article 121 of the
UCMJ by stealing a radio; violating Article 81 of the UCMJ by conspiring to
commit larceny; and violating Article 86 of the UCMJ by being AWOL from on
or about 10 December 1979 through on or about 14 January 1980.

6.  On 24 July 1980, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial and the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights available
to him.  Subsequent to this counseling, the applicant voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial.


7.  In his request for discharge, the applicant acknowledged that he was
making the request of his own free will and that he had no desire to
perform further military service.  He also acknowledged that he was guilty
of the charge against him or of a lesser included offense therein contained
which also authorized the imposition of a bad conduct or dishonorable
discharge.  He also indicated that he understood that by requesting
discharge, he would be deprived of many or all Army benefits, that he could
be ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA), and that he could be deprived of his rights and
benefits as a veteran under both Federal and State law.  This request also
confirms that the applicant elected not to submit a statement in his own
behalf.

8.  On 1 August 1980, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
14 August 1980, the applicant was discharged accordingly.

9.  The DD Form 214 the applicant was issued on the date of his discharge,
14 August 1980, confirms that he completed a total of 2 years and 6 days of
creditable active military service, and that he accrued 78 days of time
lost due to AWOL.

10.  The applicant’s record shows that he did not apply to the Army
Discharge Review Board (ADRB) for an upgrade to his discharge within its 15
year statute of limitations.

11.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge UOTHC conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the poor medical treatment he received in
the military caused his misconduct was carefully considered.  However,
there is no evidence to support the applicant’s claim and even if true,
poor medical treatment would not be a sufficiently mitigating factor that
would excuse his misconduct or warrant granting the requested relief.

2.  The evidence of record confirms that the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  In
doing so, he admitted guilt to an offense(s) under the UCMJ that authorized
a punitive discharge.  The record further shows that all requirements of
law and regulation were met and that the rights of the applicant were fully
protected throughout the separation process.

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.  The record shows that the applicant should have discovered the alleged
error or injustice now under consideration on 14 August 1980, the date of
his discharge.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 13 August 1983.  However,
he failed to file within the
3-year statute of limitations and he 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

_JNS ___  __JRS___  __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.




            _    JOHN N. SLOANE____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101383                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/08/DD                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/08/14                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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