RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 January 2005
      DOCKET NUMBER:  AR2004106658


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 experienced medical and family
problems that impaired his ability to serve.

3.  The applicant provides a five page Department of Veterans Affairs (VA)
Form 21-4138 (Statement In Support of Claim), Social Worker Statement and
Prescription Drug History in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 March 1983.  The application submitted in this case is
dated
18 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 initially enlisted in the Regular
Army and entered active duty on 24 November 1978.  He was trained in and
awarded military occupational specialty (MOS) 64C (Motor Transport
Operator) and the highest pay grade he attained while serving on active
duty was E-5.

4.  On 18 June 1981, the applicant was honorably discharged for the purpose
of immediately reenlistment.  On 19 June 1981, he reenlisted for three
years and was trained in MOS 16P (Short Range Missile Crewman).

5.  The record shows that during his tenure on active duty, he completed an
overseas tour in Korea and earned the Army Service Ribbon, Overseas Service
Ribbon and Expert Qualification Badge with Rifle and Hand Grenade Bars.  No
acts of valor, significant achievement, or service warranting special
recognition are documented in the record.

6.  The applicant’s disciplinary history includes his acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice on the following four separate occasions
for the offense(s) indicated:  23 September 1981, for purchasing
merchandise in excess of monthly limitations; 22 February 1982, for
altering his pay record; 7 May 1982, for four specifications of failing to
go to his appointed place of duty at the prescribed time; and 9 August
1982, for being absent without leave (AWOL) from 21 through
26 July 1982.

7.  On 14 September 1982, 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 30 August 1982
through on or about 26 January 1983.

8.  On 2 February 1983, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights that were
available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

9.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could 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.

10.  On 24 February 1983, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
4 March 1983, the applicant was discharged accordingly.  The DD Form 214 he
was issued, as amended, confirms he completed 1 year, 5 months and 16 days
of creditable active military service on his enlistment and that he accrued

154 days of time lost due to AWOL.

11.  On 1 September 1983, the Army Discharge Review Board (ADRB) voted to
deny the applicant’s request for an upgrade of his discharge after
concluding that his discharge was proper and equitable.

12.  The applicant provides a supporting letter that confirms he has been
treated for a major depression disorder since 13 March 2002 and a
prescription drug history that shows he has been taking medication for this
condition.

13.  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.

14.  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 medical and family problems he was
experiencing at the time impaired his ability to serve and the supporting
documents he provided were carefully considered.  However, these factors
are not sufficiently mitigating to warrant an upgrade of his discharge at
this time.

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.  The
record further confirms all requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Finally, it is concluded that the applicant’s
discharge accurately reflects his overall record of 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 1 September 1983.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 31 August 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

___ECP_  ___BKK__  __RJW__  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.




            ____Raymond J. Wagner __
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106658                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/27                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1983/03/04                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|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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