RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2004
      DOCKET NUMBER:  AR2004103001


      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. Maria C. Sanchez              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Eloise Prendergast            |     |Member               |
|     |Mr. Robert Rogers                 |     |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 discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was considered for separation
by a board of officers that was held over 25 years ago.  The applicant
continues that a major on that board voted to upgrade his discharge while
two captains on the board voted to "decline."

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 September 1978, the date of his discharge.  The application
submitted in this case is dated 15 January 2004.

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 14 January 1976 and
entered into active duty on 16 January 1976 for a period of 4 years.  After
completion of basic and advanced individual training, he was awarded
military occupational specialty 05C20 (Radio Teletype Operator (Morse)) and
assigned to 1st Battalion of the 81st Field Artillery.

4.  On 19 August 1976, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from his unit for the
period 11 August 1976 through 16 August 1976.  The punishment consisted of
forfeiture of $180.00, 14 days extra duty, and 14 days restriction.

5.  On 8 June 1977, nonjudicial punishment was imposed against the
applicant for being absent from his appointed place of duty on 1 June 1977.
 The punishment consisted of reduction in pay grade to private/pay grade E-
2 [suspended for a period of 60 days] and 14 days extra duty.  The
applicant appealed the punishment and his appeal was denied on 15 June
1977.
6.  On 31 August 1977, nonjudicial punishment was imposed against the
applicant for failure to go to his appointed place of duty at the
prescribed time on 18 August 1977.  The punishment consisted of forfeiture
of $101.00 and confinement in the Correctional Custody Facility for a
period of seven days based on the approval by the Staff Judge Advocate.

7.  On 8 November 1977, nonjudicial punishment was imposed against the
applicant for being disrespectful in language towards a superior non-
commissioned officer (NCO) on 24 October 1977.  The punishment consisted of
reduction in pay grade to private/pay grade E-2 and 14 days of extra duty.


8.  On 27 December 1977, nonjudicial punishment was imposed against the
applicant for willfully disobeying a lawful order and for failure to go to
his appointed place of duty at the prescribed time on 7 December 1977.  The
punishment consisted of restriction for a period of five days to the
Battery and forfeiture of $92.00 per month for one month.  The applicant
appealed the punishment and that appeal was denied on 5 January 1978.

9.  Special Court-Martial Order Number 12, dated 4 May 1978, shows that the
applicant was found guilty of assaulting a superior NCO on 7 February 1978,
failure to go to his appointed place of duty at the prescribed time on 23
March 1978, and being disrespectful in language toward a superior NCO on 7
April 1978.  The sentence was adjudged on 11 April 1978 and consisted of
confinement at hard labor for three months [at the U.S. Army Retraining
Brigade], forfeiture of $265.00 per month for three months, and reduction
in pay grade to private/pay grade E-1.

10.  The applicant's service records show that, while at the Retraining
Brigade during the period of 12 May 1978 through 13 July 1978, he received
26 unsatisfactory ratings on his Training Observation Report.

11.  On 3 June 1978, nonjudicial punishment was imposed against the
applicant for wrongful possession of marijuana on 29 May 1978.  The
punishment consisted of forfeiture of $50.00 per month for one month, 14
days restriction to the unit area except for church service and training,
and 14 days extra duty.

12.  On 24 July 1978, nonjudicial punishment was imposed against the
applicant for wrongfully communicating a threat to a private/pay grade E-2
on 20 July 1978.  The punishment consisted of forfeiture of $50.00 per
month for one month and 14 days extra duty.
13.  On 25 July 1978, a recommendation for discharge of the applicant under
the provisions of paragraph 14-33 for misconduct was submitted to the
commander of the 1st Battalion of the U.S. Army Retraining Brigade at Fort
Riley, Kansas.  This recommendation stated that the applicant's failure to
react constructively to the rehabilitation program is indicative that he
should not be retained in the service.

14.  On 26 July 1978, the applicant consulted with counsel in regard to
separation for misconduct under the provisions of chapter 14 of Army
Regulation 635-200 (Personnel Separations Enlisted Personnel).  The
applicant requested consideration by a board of officers and to personally
appear before that board.  He elected not to submit statements on his own
behalf.

15.  On 27 July 1978, the applicant was referred to the Mental Hygiene
Consultation Service [MHCS] for reasons of hostility towards his coworkers
and to be cleared for discharge.  On 9 August 1978, the applicant underwent
an examination to determine if he suffered from a personality disorder.
The examining medical officer indicated that the applicant had a long-
standing history of conflict with authority which precedes active duty in
the Army.

16.  The medical officer also stated that the applicant has a continued
problem with low frustration tolerance, and his explosive reaction to
demands from authority is further precipitated by the use of alcohol.  The
examining medical officer concluded that the applicant had a personality
disorder (explosive personality) which was manifested by gross outbursts of
anger and physical aggression and cleared him for any administrative
actions.

17.  On 28 July 1978, the applicant received a counseling statement for
missing PT [physical training] formation on 28 July 1977 and for failure to
get out of bed until approximately 0730 hours.

18.  On 4 August 1978, the commander approved the applicant's request to
have his case considered by a board of officers under the provisions of
chapter 14 of Army Regulation 635-200.

19.  On 18 August 1978, nonjudicial punishment was imposed against the
applicant for being AWOL from his unit for the period 9 August 1978 through
16 August 1978.  The punishment consisted of 14 days restriction to the
unit area, dining facility and chapel, 14 days extra duty and forfeiture of
$80.00 per month for one month.


20.  On 25 August 1978, the applicant appeared before a board of officers
with counsel.  The Board found the applicant had committed acts of
discreditable nature during his term of service by receiving two Articles
15 for failure to repair, a counseling statement for missing PT formation,
one Article 15 for disrespect to an NCO, one Article 15 for possession of
marijuana at the Retraining Brigade, one Article 15 for communicating a
threat at the Retraining Brigade, and a special court-martial conviction
for assault on an NCO and being disrespectful to a NCO while in the
brigade.

21.  The board of officers noted that the applicant's performance at the
Retraining Brigade was poor and that his service was marked by incidents of
misconduct and shirking.  The board of officers determined that he did not
serve in an honorable fashion.

22.  The board also noted that the psychiatrist's evaluation showed the
applicant suffered with a long-standing personality disorder which was
manifested by gross outbursts of anger and physical aggression.

23.  Counsel stated that the applicant's misconduct for which he was
convicted by court-martial, written up or given Articles 15 were due to
outbursts of anger and physical aggression which was indicative of a
personality disorder.  Counsel also stated that the applicant's refusal or
failure to accept military authority and his constant seeking of instant
gratification were also indicative of his personality disorder.

24.  Two members of the board of officers determined there was a lack of
historical demonstrable evidence to convince them that the applicant had
chronic severe personality disorder.  They recommended that the applicant
be eliminated from the service for misconduct with an issuance of an Under
Other Than Honorable Conditions Discharge Certificate.

25.  On 25 August 1978, a minority report was submitted by the third member
of the board of officers which stated that the psychiatrist's evaluation of
the applicant failed to demonstrate a clear and chronological historical
pattern of an explosive personality disorder.  The minority report further
stated that the author believed the applicant had "characterological
problems and was more in the area of being passive-aggressive" and that he
would not be a good candidate to return to duty because of his
psychological problems.  The minority report continues that the author
agreed with the other board member that the applicant was "suitable" but he
did not totally agree with the psychiatrist's diagnosis and
recommendations.

26.  On 30 August 1978, an officer of the Staff Judge Advocate, found the
proceedings to be legally sufficient.

27.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows that he was discharged on 5 September 1978, under the provisions of
paragraph 14-33b(1) of Army Regulation 635-200, for misconduct and issued
an Under Other Than Honorable Conditions Discharge Certificate.  He had
served 2 years, 6 months and 14 days of total active service and had 36
days of lost time due to AWOL and confinement.

28.  The applicant applied to the Army Discharge Review Board (ADRB) on
18 September 1978, requesting an upgrade of his discharge.  On 1 July 1980,
the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB
determined that the applicant's discharge was proper and equitable and that
the discharge was properly characterized as under other than honorable
conditions.

29.  On 3 August 1981, the applicant requested that the ADRB reconsider his
request to upgrade his under other than honorable conditions discharge.
The ADRB reviewed the case on 23 November 1982 and unanimously voted to
deny the request.  The ADRB notified the applicant by letter on 24 January
1983.

30.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for the convenience of
the government.  Paragraph 14-33b(1) states, in pertinent part, that
members involved in frequent incidents of a discreditable nature with civil
or military authorities were subject to separation for misconduct.  A
discharge under other than honorable conditions is normally considered
appropriate.

31.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

32.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.
33.  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.  The applicant contends that his under other than honorable conditions
discharge should be upgraded to an honorable discharge because one member
of the board of officers in his case voted to upgrade the discharge.

2.  Evidence shows that the board of officers unanimously recommended that
the applicant be eliminated from the service and be issued an under other
than honorable conditions discharge.

3.  Records show that a member of the board of officers provided a minority
report stating that he disagreed with the other members regarding the
psychiatrist's evaluation of the applicant.  However, the records also show
that he agreed with the other members of the board that the applicant was
"not suitable" for continued military service due to his misconduct.

4.  Contrary to the applicant's contention that a member of the board voted
to upgrade his discharge, records show that all three members clearly
determined that the applicant was "unsuitable" for further service and
there is no evidence that shows that any member of the board of officers
voted to upgrade the applicant's discharge.

5.  Records show that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  Lacking evidence
to the contrary, it is determined that all requirements of law and
regulations were met and the rights of the applicant were fully protected
throughout the separation process.



6.  After a review of the applicant’s record of service, which shows
various incidents of misconduct is evident that his quality of service did
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  Therefore, he is not entitled to an honorable discharge.

7.  The applicant’s record of service shows that he received 8 nonjudicial
punishments, 1 court-martial and had 36 days of lost time and confinement.
Therefore, his record of service is not satisfactory.  As a result, there
is insufficient basis for upgrading his discharge to a general discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 23 November 1982.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 22 November 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_rr _____  ___ecp __  __mm___  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.




                                  ______________________
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004103001                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/16                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1978/09/05                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14-33b(1)                |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]