RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 OCTOBER 2005
      DOCKET NUMBER:  AR20050003769


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Kenneth Lapin                 |     |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 that his under other than honorable conditions
discharge be upgraded.

2.  The applicant states he made a mistake while on active duty and has
paid for that mistake.

3.  The applicant provides his self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 March 1980.  The application submitted in this case is
dated        4 March 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.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 14 July 1978.  He was trained in, awarded, and
served in military occupational specialty (MOS) 19D10 (Cavalry Scout).

4.  On 10 October 1978, nonjudicial punishment (NJP) was imposed against
the applicant for wrongful possession of marijuana.  His punishment
consisted of forfeiture of $90.00 per month for 1 month.

5.  On 26 March 1979, NJP was imposed against the applicant for wrongful
possession of amphetamines and wrongfully selling amphetamines on two
separate occasions.  His punishment consisted of reduction to the grade of
private/E-1, forfeiture of $209.00 per month for two months, restriction
for 45 days, and extra duty for 45 days,




6.  On 22 August 1979, the applicant was convicted by a special court-
martial of being AWOL on 16 May 1979 through 31 May 1979.  He was also
convicted of escaping from lawful custody.  His punishment consisted of
forfeiture of $279.00 per month for 6 months and confinement at hard labor
for 6 months.

7.  On 6 November 1979, the unit commander recommended the applicant be
discharged for misconduct under the provisions of Army Regulation 635-200,
chapter 14.  He attached a resume containing the applicant’s attitude,
conduct, performance and discreditable acts as justification.  In remarks
is listed “SM presently in a DFR status.  SM went AWOL 2200 hrs, 8 Oct 79,
and was DFR’ed 2400 hrs, 6 Nov 79.”

8.  On 6 March 1980, the unit commander, from the Retraining Brigade,
stated that the applicant returned from DFR status effective 12 February
1980 and concurred with the previous commander’s recommendation for a
chapter 14 discharge.

9.  On 6 March 1980, the Retraining Brigade Commander requested the
applicant be discharged for misconduct.  He states that the applicant has
received considerable counseling since his arrival by the social workers,
leadership team, and unit cadre.

10.  On 12 March 1980, the lieutenant colonel in the position of commander
of 3d Battalion, US Army Retraining Brigade, Fort Riley, Kansas,
recommended approval of the applicant's discharge for misconduct.  The
commander stated that the applicant was sentenced to six months confinement
on 22 August 1979 and sentence was deferred on 7 September 1979.

11.  On 13 March 1980, the applicant consulted with military counsel.
After being advised of the basis for the contemplated separation, its
effects and the rights available to him, he waived his right to
consideration of his case by a board of officers, to personal appearance
before a board of officers, and to counsel.  He also elected not to submit
statements on his behalf.

12.  On 20 March 1980, the lieutenant colonel in the position of acting
commander for Headquarters, US Army Retraining Brigade, Fort Riley, Kansas,
directed the discharge of the applicant under the provisions of chapter 14,
Army Regulation 635-200.  He stated that the applicant will be furnished an
Under Other Than Honorable Conditions Discharge Certificate.


13.  The applicant's DD Form 214 shows that he was discharged with a
characterization of service of under other than honorable conditions on 25
March 1980.  The narrative reason for separation is listed as “Frequent
involvement in incidents of a discreditable nature with civil or military
authorities.”  The applicant had 11 months and 9 days of creditable
service.

14.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board for an upgrade of his discharge within the 15-
year statute of limitations of that board.

15.  In support of his application the applicant provides his self-authored
statement.  In his statement the applicant states that he realized that he
made a mistake when he was a kid but, feels that he should not have to pay
for the mistake the rest of his life.  He maintains the mistake occurred in
Germany after his fiancée was killed in a train accident.

16.  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.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  Additionally, paragraph 14-39
states that an under other than honorable discharge certificate is normally
appropriate for a member who is discharged for acts and patterns of
misconduct.

17.  Army Regulation 635-200 paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

18.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded because he
made a mistake and has paid for that mistake.

2.  Evidence of record confirms that all requirements of law and regulation
were met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of service.

3.  The applicant must provide evidence to prove that the discharge was
rendered unjustly, in error, or that there were mitigating circumstances
which warrant the upgrade.  Absent such evidence, regularity must be
presumed in this case.

4.  The applicant’s record of indiscipline does not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
he is not entitled to either a general or an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 24 March 1983.  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

__JS____  __LS ___  __KL____  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.




                                  ______ John Slone__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003769                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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