RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 December 2004
      DOCKET NUMBER:  AR2004104756


      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          |
|     |Mr. John E. Denning               |     |Member               |
|     |Mr.  James B. Gunlicks            |     |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 a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that since his discharge, it has been
discovered that he suffers from a mental health disease called
“schizoflective disorder”.  He further states that he has suffered from
this condition for many years and in all likelihood, he was suffering from
this condition on the day he committed the offenses that led to his
discharge.  He states he spent a total of 9 years,
5 months and 24 days of Army service and served his country honorably.

3.  The applicant provides self-authored statement and copies of his
separation documents (DD Forms 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 24 March 1978.  The application submitted in this case was
received on 4 March 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 was initially inducted into the
Army and entered active duty on 2 October 1968.  He was awarded and served
in military occupational specialty (MOS) 11B (Infantryman) and completed a
one-year tour of duty in Korea.  On 14 May 1970, he was honorably separated
after completing 1 year, 7 months and 13 days of active military service.
The separation document he was issued for this period of service confirms
he earned the National Defense Service Medal, Armed Forces Expeditionary
Medal, Sharpshooter Qualification Badge with Rifle Bar (M-14) and Marksman
Qualification Badge with Rifle Bar (M-16).

4.  On 18 November 1974, the applicant enlisted in the Regular Army and
reentered active duty.  He was trained in and awarded MOS 16D (Hawk Missile
Crewmember).  On 26 August 1976, he was honorably discharged for the
purpose of immediate reenlistment.  The DD Form 214 he was issued for this
period of service shows he earned no additional awards.

5.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition during the period of
enlistment under review.  There are no medical treatment files or other
documents on file in the applicant’s Military Personnel Records Jacket
(MPRJ) indicating he suffered from any disabling mental condition during
his tenure on active duty.  The MPRJ is also void of of a separation packet
containing the specific facts and circumstances surrounding his discharge
processing.

6.  The applicant’s MPRJ contains a copy of Special Court-Martial (SPCM)
Orders Number 13, dated 11 July 1978, published by Headquarters,
Wildflecken Training Area, APO New York 09026.  These orders show a SPCM
assembled at Schweinfurt, Germany on 16 February 1978, to arraign the
applicant on charges of violating Article 92 and Article 134 of the Uniform
Code of Military Justice (UCMJ).  The orders further show the applicant was
charged with four specifications of violating Article 92, by disobeying a
lawful order and violating a lawful general regulation on three separate
occasions; and two specifications of violating Article 134, by
communicating indecent language to a female commissioned officer and
wrongfully possessing marijuana.

7.  SPCM Orders Number 13 further shows the convening authority terminated
the court-martial proceedings by approving the applicant’s request for
discharge for the good of the service pursuant to the provisions of chapter
10,
Army Regulation 635-200 on 27 February 1978, and directing the applicant’s
UOTHC discharge.

8.  On 24 May 1978, the applicant was discharged under the provisions of
chapter 10, Army Regulation 635-200, for the good of the service, in lieu
of trial by court-martial.  The DD Form 214 he was issued confirms he
received an UOTHC discharge after completing a total of 4 years, 11 months
and 20 days of active military service.  This document further shows the
applicant earned no additional awards during the enlistment.  The applicant
authenticated the
DD Form 214 with his signature on the date of his discharge.
9.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board (ADRB) for an upgrade of his discharge within
its
15 year statute of limitations.

10.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he suffered from a mental condition
that impaired his ability to serve at the time of his discharge was
carefully considered. However, there is insufficient evidence to support
this claim.

2.  The applicant’s prior honorable service and his overall record were
also carefully evaluated and considered.  However, his overall record of
service is not sufficiently meritorious to mitigate the misconduct that
resulted in his discharge.  Further, his record does properly document and
recognized his prior honorable service in the separation documents he was
issued for those periods of active duty service.

3.  The specific facts and circumstances surrounding the applicant’s
discharge processing, to include his request for discharge are not on file
in his record.  There is a copy of SPCM Orders Number 13 on file that
confirms the
court-martial proceedings against him were terminated as a result of the
convening authority approving his request for discharge for the good of the
service, in lieu of trial by court-martial.

4.  Procedurally, prior to being discharged under the provisions of chapter
10, Army Regulation 635-200, the applicant would have been required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by court-martial.  In doing so, he would have had
to admit guilt to a stipulated offense under the UCMJ that authorized a
punitive discharge.  In the absence of information to the contrary, it is
concluded that all requirements of law and regulation were met and the
rights of the applicant were fully protected throughout the separation
process.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 March 1978.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 23 March 1981. 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

__MDM__  __JED __  __JBG__  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                 |AR2004104756                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/07                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1978/03/24                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of Court-Martial                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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