RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050001113


      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             |
|     |Ms. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 or to a fully honorable discharge.

2.  The applicant states that he desires to personally appear before the
Board.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 March 1982.  The application submitted in this case is dated 6 January
2005.

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 limitations 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.  On 22 January 1981, the applicant enlisted in the United States (US)
Army Reserve Delayed Entry Program (DEP) for 6 years.  On 18 February 1981,
he was discharged from the DEP and enlisted in the Regular Army for 3
years.  He completed the training requirements and he was awarded military
occupational specialty (MOS) 13B (Cannon Crewman).

4.  On 24 December 1981, the applicant was convicted by a summary court-
martial (SCM) for striking a sergeant in the face with his fist on 2
December 1981.  He was sentenced to reduction from pay grade E-2 to pay
grade E-1, a forfeiture of $150.00 pay for 1 month, and to be confined at
hard labor for
25 days.

5.  On 5 February 1982, the applicant was convicted by a SCM for
participating in a breach of peace by wrongfully engaging in an affray with
a private on
17 January 1982, and of being disorderly and disrespectful in language and
deportment towards a sergeant on 18 and 20 January 1982.  He was sentenced
to a forfeiture of $100.00 pay for 1 month and to be confined at hard labor
for
20 days.

6.  On 28 January 1982, the applicant underwent a mental status evaluation
which determined he was qualified for separation.  On the same date, he
declined a medical examination.

7.  The applicant's records do not contain all of the facts and
circumstances surrounding the discharge process.  However, his records do
contain a properly constituted DD Form 214 (Certificate of Release or
Discharge from Active Duty) that was prepared at the time of separation.
The DD Form 214 shows that, on
5 March 1982, he was separated with an UOTHC discharge for frequent
involvement in incidents of a discreditable nature with civil or military
authorities, under the provisions of chapter 14, Army Regulation (AR) 635-
200.  He had completed a total of 11 months and 12 days of active military
service and he had 34 days of recorded lost time.

8.  AR 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 and patterns of misconduct such as
frequent incidents of a discreditable nature with civil or military
authorities, commission of a serious offense, and desertion or absence
without leave.  Action will be taken to separate a member for misconduct
when it is clearly established that rehabilitation is impractical or
unlikely to succeed.  An UOTHC discharge is normally considered
appropriate.

9.  On 11 August 1983, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

10.  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 (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR 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 available records show the applicant was discharged under the
provisions of chapter 14, AR 635-200, for frequent involvement in incidents
of a discreditable nature with civil or military authorities.  Some of the
facts and circumstances surrounding the discharge process are missing.
However, his record shows the commission of several offenses which were
punishable under the Uniform Code of Military Justice (UCMJ) with a
punitive discharge.  The applicant would have been required to consult with
defense counsel and he would have been required to sign a statement
indicating that he had been informed that he could receive an UOTHC and the
ramifications of receiving such a discharge.  The Board presumes regularity
in the discharge process.  The applicant has provided no information that
would indicate the contrary.

2.  The applicant’s conduct was inconsistent with the Army’s standards for
acceptable personal conduct and his overall quality of service was not so
meritorious as to warrant an upgrade of his discharge

3.  The applicant does not have a right to a hearing before the ABCMR.  The
Director or the Board may grant a formal hearing whenever justice requires
or when issues presented are unique, convoluted, or precedent setting.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 11 August 1983.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 10 August 1986.  However,
the applicant 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

__wdp___  __tmr___  __rjf___  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.



                                        William D. Powers
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001113                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19820305                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 14                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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