RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 November 2004
      DOCKET NUMBER:  AR2004104117


      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. Fred Eichorn                  |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Robert J. Osborn              |     |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 an honorable discharge (HD) with
entitlement to all benefits.

2.  The applicant states, in effect, that most of the court-martial charges
against him were dropped and that he was told upon his release that he
could apply for an upgrade of his discharge after six months and would
probably receive it.

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 29 April 1983.  The application submitted in this case is
dated 3 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 he enlisted in the Regular Army and
entered active duty on 4 May 1981.  He was trained in, awarded and served
in military occupational specialty (MOS) 12B (Combat Engineer) and the
highest rank he attained while serving on active duty was private first
class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.  However, it 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) for minor offenses on the following on three
separate occasions:  19 April 1982, 22 May 1982 and 1 February 1993.

5.  On 23 February 1983, a summary court-martial convicted the applicant of
one specification of violating Article 108 of the UCMJ, destruction of
government property and three specifications of violating Article 134 of
the UCMJ, drunk and disorderly.

6.  The 23 February 1983 summary court-martial also found the applicant
guilty of violating Article 92, disobeying a lawful regulation; however,
this guilty finding was ultimately set-aside on 17 March 1983.

7.  On 29 April 1983, the applicant was separated under the provisions of
chapter 14, Army Regulation 635-200, by reason of misconduct.  A separation
packet containing the specific facts and circumstances surrounding the
applicant’s discharge is not on file in his Military Personnel Records
Jacket (MPRJ).  The MPRJ does contain separation document (DD Form 214)
that contains the authority and reason for the applicant’s discharge and
the applicant authenticated this document with his signature on the date of
his separation.

8.  The applicant’s DD Form 214 confirms he completed 1 year, 11 months and

4 days of creditable active military service and that he accrued 22 days of
time lost due to confinement.

9.  There is no indication that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of her discharge within its 15-year
statute of limitations.

10.  Army Regulation 635-200 sets forth the policy for the separation of
enlisted personnel.  Chapter 14 contains the policy guidance for separation
by reason of misconduct.  The issuance of a discharge under other than
honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge was unjust and that he
was told he would receive an upgrade within six months of his separation
were carefully considered.   However, the Army does not have, nor has it
ever had, a policy to automatically upgrade discharges.  Each case is
decided on its own merits when an applicant submits an application to the
ADRB or this Board requesting a change in discharge.  Changes may be
warranted if either Board determines that the characterization of service
or the reason for discharge or both were improper or inequitable.

2.  The record is void of the specific facts and circumstances surrounding
the applicant’s discharge processing; however, it does contain a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s discharge.  The applicant authenticated this document with
his signature on the date of his separation.  Therefore, Government
regularity in the discharge process is presumed.
3.  Absent evidence to the contrary, it is concluded that the applicant’s
separation was accomplished in accordance with applicable regulations.
Further, all requirements of law and regulation were met and that the
rights of the applicant were fully protected throughout the separation
process.  Finally, given the applicant’s disciplinary history, it appears
his discharge accurately reflects his overall record of service.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 April 1983.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 28 April 1986.  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
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJO _  __FE___  __JTM___  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.




            ____Fred Eichorn________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004104117                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2004/11/23                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1983/04/29                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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