RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          2 November 2004
      DOCKET NUMBER:  AR2004102195


      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. Margaret K. Patterson         |     |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 that of a fully honorable
discharge.

2.  The applicant states, in effect, that he experienced prejudice during
his military service and during the discharge process.  He did not know
what steps to take and he was given misleading information.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 December 1980.  The application submitted in this case is
dated
26 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.  On 5 November 1979, the applicant enlisted in the United States Army
Reserve Delayed Entry Program (DEP).  On 27 November 1979, he was separated
from the DEP and he enlisted in the Regular Army for 3 years.

4.  On 15 January 1980, while assigned to basic training at Fort Knox,
Kentucky, nonjudicial punishment under the provisions of Article 15,
Uniform Code of Military (UCMJ) was imposed against him for failure to go
to his appointed place of duty at the time prescribed on 15 January 1980.
His punishment included a forfeiture of $75.00 pay for 1 month.

5.  On 31 January 1980, the applicant was assigned to Fort Benning, Georgia
for advanced individual training and basic airborne training.  The
available evidence does not show that he completed the basic airborne
course.  However, he completed the training requirements for military
occupational specialty (MOS)
11B (Infantryman) and he was awarded the MOS.  On 4 April 1980, he was
assigned to Fort Riley, Kansas with duties in his MOS.

6.  The applicant left his unit at Fort Riley in an absent without leave
(AWOL) status from 16 June 1980 to 30 August 1980 until he returned to the
Personnel Control Facility (PCF), Fort Knox.

7.  On 11 September 1980, court-martial charges were preferred against the
applicant for the above period of AWOL.  On 12 September 1980, he consulted
with legal counsel and requested discharge for the good of the service in
lieu of trial by court-martial under the provisions of chapter 10, Army
Regulation
635-200.  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 applicant indicated in a statement that he submitted in his own behalf
that he did not want to be an infantryman; he wanted to be a military
policeman or a bus driver.

8.  On 12 September 1980, the applicant was placed on excess leave pending
approval of his request for separation.

9.  On 28 October 1980, the PCF commander recommended approval of the
applicant's request with a UOTHC discharge.  The commander stated the
applicant's conduct had rendered him triable by court-martial under
circumstances, which could lead to a bad conduct discharge.  He also stated
that, based on the applicant's previous record, punishment would have a
minimal rehabilitative effect and that he believed a discharge would be in
the best interest of all concerned.  On the same date, the applicant's
intermediate commander recommended approval with a UOTHC discharge.  On 31
October 1980, the separation authority approved the request and directed
that the applicant be reduced from pay grade E-2, which was the highest pay
grade that he achieved, to pay grade E-1 and separated with a UOTHC
discharge.

10.  On 16 December 1980, the applicant was separated in absentia with a
UOTHC discharge for conduct triable by court-martial under the provisions
of chapter 10, Army Regulation 635-200.  He had completed 10 months, and 5
days of active military service and he had 76 days of lost time due to
being AWOL.

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 is authorized, a UOTHC
discharge is considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, 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.  As part of the separation process, the applicant consulted with a
legal representative and acknowledged that he understood the consequence
of receiving a UOTHC discharge.

3.  The applicant’s entire record of service was taken into consideration
and it was determined that both the reason for discharge and the
characterization of service were appropriate considering the facts
surrounding his discharge.

4.  There is nothing in the applicant’s record and he has provided nothing
that shows prejudicial treatment or discrimination within the various
commands to which he was assigned.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 December 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
15 December 1983.  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

__mkp___  __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.


                                  Margaret K. Patterson
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004102195                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041102                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19801216                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |




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