RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 November 2004
      DOCKET NUMBER:  AR2004103057


      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. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard Hassell               |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that he was just trying to take care
of his family problems at the time of his discharge, but the officers in
charge would not listen to his situation.  He claims he tried to take the
legal approach to solving his problems, but his officers prevented that.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 March 1979.  The application submitted in this case was
received 6 February 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’s record shows that he enlisted in the Regular Army and
entered active duty on 10 March 1975.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11B (Infantryman) and the
highest rank he attained while serving on active duty was sergeant (SGT).


4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
during his active duty tenure, he completed an overseas tour in Korea and
earned the National Defense Service Medal, Armed Forces Expeditionary
Medal, and Army Good Conduct Medal.  The record documents no acts of valor,
significant achievement, or service warranting special recognition.

5.  The applicant record 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 on the following three
separate occasions for the offense(s) indicated:  29 July 1977, for failing
to go to his appointed place of duty; 15 November 1977, for being absent
without leave (AWOL) from on or about 23 October through on or about 1
November 1977; and 19 April 1978, for being AWOL from on or about 24 March
through on or about 4 April 1978.  The last NJP action resulted in his
reduction to specialist four (SP4).  Further, the record shows that during
his active duty tenure he accrued a total of 180 days of time lost due to
being AWOL.

6.  On 25 January 1979, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ by being AWOL from on or about 8 September 1978
through on or about
12 January 1979.

7.  On 29 June 1979, 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.


8.  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.

9.  On 8 March 1979, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge and
the applicant was discharged accordingly.  The DD Form 214 the applicant
was issued on the date of his discharge, 8 March 1979, confirms he
completed a total of 5 years and 23 days of creditable active military
service, and that he accrued 180 days of time lost due to AWOL.
10.  On 15 April 1987, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

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 under other than honorable conditions is normally considered
appropriate.

12.  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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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’s contention that his AWOL was the result of his dealing
with family problems that his officers would not allow him to address
through legal means was carefully considered.  However, there is
insufficient evidence to support this claim, and even if true, family
problems 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.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 15 April 1987.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 14 April 1990.  However, he 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

_MDM___  _LDS___  _LH_____  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                 |AR2004103057                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/03/08                              |
|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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