RECORD OF PROCEEDINGS


      IN THE CASE OF


      BOARD DATE:           25 January 2005
      DOCKET NUMBER:  AR2004106580


      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. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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.

2.  The applicant states, in effect, that he served his country with honor.
 He claims the situation that led to his discharge was an insolated
incident and was not characteristic of his military service.

3.  The applicant provides three character references in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 3 April 1980.  The application submitted in this case is
dated
23 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 enlisted in the United States Army
Reserve (USAR) for six years on 1 July 1975.  He entered active duty to
complete his initial active duty for training (IADT) on 15 February 1976.

4.  On 24 July 1976, he was released from active duty (REFRAD) and returned
to his USAR unit after completing 5 months and 10 days of active military
service.

5.  On 19 June 1979, the applicant was ordered to active duty for 18 months
and assigned to Fort Riley, Kansas.  His record documents no acts of valor,
significant achievement or service warranting special recognition.
6.  The record shows a disciplinary history that includes the applicant’s
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on three separate
occasions.

7.  On 24 September 1979, the applicant accepted NJP for disobeying the
lawful order of a senior noncommissioned officer (NCO) and two
specifications of failure to go to his appointed place of duty at the time
prescribed.

8.  On 23 October 1979, he accepted NJP for two specifications of
disobeying the lawful order of a senior NCO, two specifications of being
disrespectful in language toward a senior NCO and destroying government
property.

9.  On 6 February 1980, the applicant was found guilty of two
specifications of violating Article 134 of the UCMJ by twice communicating
a threat to kill a senior NCO by a summary court-martial.  The resultant
sentence included confinement at hard labor for a period of 21 days.

10.  On 18 March 1980, he accepted NJP for failing to go to his appointed
place of duty at the prescribed time and absenting himself from his unit
without authority.

11.  On 3 March 1980, the applicant’s unit commander recommended he be
separated under the provisions of paragraph 14-33, Army Regulation 635-200,
by reason of misconduct (frequent incidents of a discreditable nature).
The commander cited the applicant’s disciplinary history, which included
acceptance of three Article 15s and a summary court-martial conviction.

12.  On 28 March 1980, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, its effects,
of the rights available to him and of the effects of waiving those rights.
Subsequent to this counseling, the applicant waived his right to
consideration of his case by a board of officers, personal appearance
before a board of officers and he chose not to submit statements in his own
behalf.

13.  On 2 April 1980, the separation authority directed the applicant’s
separation under the provisions of chapter 14, Army Regulation 635-200 with
an UOTHC discharge.  On 3 April 1980, the applicant was discharged
accordingly.

14.  The separation document (DD Form 214) issued to the applicant on the
date of his separation confirms he completed a total of 8 months and 28
days of creditable active military service and accrued 17 days of time
lost.
15.  On 27 May 1983, the Army Discharge Review Board (ADRB), after
carefully considering the applicant’s case, determined that his discharge
was proper and equitable and denied his request for an upgrade of his
discharge.

16.  The applicant provides three character references that attest to his
good post service conduct and contributions to his community.

17.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  An UOTHC discharge is normally
appropriate for members separated under these provisions.

18.  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 discharge was based on an isolated
incident was carefully considered.  However, there is insufficient evidence
to support this claim.  The character references provided by the applicant
were also considered, but his post service conduct alone is not sufficient
mitigating to warrant an upgrade of his discharge at this time.

2.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his overall record of
undistinguished service.
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 27 May 1983.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 26 May 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LMD_  ___KAN _  ___JEA__  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.




            ____Kathleen A. Newman____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106580                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/01/25                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/04/03                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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