RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          5 October 2004
      DOCKET NUMBER:  AR2004101410


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Larry C. Bergquist            |     |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 general discharge under
honorable conditions.

2.  The applicant states, in effect, that he was young and he made some bad
decisions, but he has not been in trouble since he was separated.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 October 1982.  The application submitted in this case is
dated 1 December 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 enlisted in the Regular Army on 15 January 1980, 1 day
before his 18th birthday.  He served until 1 November 1981 when he
reenlisted for 3 years, his previous military occupational specialty (MOS)
19D (Cavalry Scout) and in pay grade E-4.  He was 19 years, 9 months, and
16 days old when he reenlisted.

4.  On 24 March 1982, he was assigned to Germany.

5.  On 5 October 1982, the applicant underwent a mental status evaluation
by a medical doctor and he was determined to be qualified for separation
under the provisions of chapter 10, Army Regulation 635-200 for the good of
the service in lieu of trial by court-martial.  He was mentally
responsible; able to distinguish right from wrong and adhere to the right;
and he also had the mental capacity to understand and participate in board
proceedings.

6.  The applicant's official military personnel file does not contain the
facts and circumstances surrounding the charges that were filed against
him.  However, on 5 October 1982, the applicant consulted with legal
counsel and requested discharge under the provisions of chapter 10, Army
Regulation 635-200 for the good of the service in lieu of trial by court-
martial.  He was advised that he could receive a UOTHC discharge.  He
authenticated a statement with his signature acknowledging that he
understood the ramifications and effects of receiving a UOTHC discharge.
The available record does not contain a statement the applicant submitted
in his own behalf.

7.  On 11 October 1982, the applicant's unit commander recommended approval
of the applicant's request with a UOTHC discharge.  The unit commander
cited the basis for his recommendation was that the pending charges against
the applicant were sufficiently serious to warrant his elimination from the
service.  He stated that the administrative separation action would be in
the best interest of the United States Army.

8.  On 12 October 1982, both the battalion and brigade commanders
recommended separation with a UOTHC discharge.  On 13 October 1982, the
approval authority approved the applicant's request for discharge under the
provisions of chapter 10 and directed that he be separated with a UOTHC
discharge in pay grade E-1.

9.  On 24 October 1982, the applicant returned to Fort Dix, New Jersey for
separation processing.

10.  The available record contains a properly constituted DD Form 214 that
was prepared at the time of separation and signed by the applicant.  The DD
Form 214 (Certificate of Release or Discharge from Active Duty) shows the
applicant was separated on 25 October 1982 under the provisions of chapter
10, Army Regulation 635-200 with a UOTHC discharge for the good of the
service.  He had completed 2 years, 9 months and 11 days of active military
service.  He had no recorded lost time.

11.  The available evidence does not show the applicant has ever applied to
the Army Discharge Review Board (ADRB) for an upgrade of his discharge
within the ADRB's 15-year statute of limitations.

12.  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 was authorized, a UOTHC
discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The available record shows the applicant was discharged under the
provisions of chapter 10, Army Regulation 635-200, for the good of the
service.  The facts and circumstances surrounding the charges pending
against the applicant are missing.  However, he consulted with legal
counsel and voluntarily requested discharge to avoid trial by court-
martial.  In doing so, he would have admitted guilt to the stipulated
offense(s) pending against him.  He also acknowledged he had been informed
he could receive a UOTHC discharge and the ramifications of receiving a
UOTHC discharge.  The Board presumes administrative regularity and the
applicant has provided no information that would indicate the contrary.

2.  The applicant has established no basis for the upgrade of his
discharge.

3.  The applicant met entrance qualification standards to include age.
Further, the Board found no evidence that he was any less mature than other
soldiers of the same age who successfully completed their military service
obligation.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 October 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
24 October 1985.  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

__kan___  __jtm___  __lcb___  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.



                                  Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101410                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041005                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19821015                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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