RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         1 November 2005
      DOCKET NUMBER:  AR20050004183


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas E. O’Shaughessy        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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, he had a good record in Europe and
feels he did not deserve the type of discharge he received.  He feels that
just because he wanted out of the Army early, this was no reason to give
him an UOTHC discharge, and he now requests an upgrade to a better
discharge.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 January 1981.  The application submitted in this case
is dated
18 February 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 that he enlisted in the Army and entered
active duty on 21 June 1977.  He was trained in, awarded and served in the
military occupational specialty (MOS) 63B10 (Light Wheel Vehicle/Power
Generation Mechanic).  His Personnel Qualification Record (DA Form 2-1)
shows, in item 18 (Appointment and Reductions), that he was promoted to
specialist four (SP4) on 1 May 1979, and that this was the highest rank he
attained while serving on active duty.

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on five separate occasions.

5.  On 22 September 1978, the applicant accepted NJP for failing to obey
lawful order.  His punishment included reduction to private/E-2 (PV2),
forfeiture of $100.00 (suspended for ninety days) and 14 days of
restriction and extra duty.

6.  On 21 March 1980, the applicant accepted NJP for failing to go place of
duty. His punishment included reduction to private first class/E-3 (PFC),
forfeiture of $100.00 (suspended until 19 May 1980), and 14 days extra
duty.

7.  On 25 June 1980, the applicant accepted NJP for failing to go to his
place of duty.  His punishment included a reduction to private/E-2 (PV2),
forfeiture of $100.00 (suspended for sixty days) and 14 days extra duty.

8.  On 8 July 1980, the applicant accepted NJP for willfully disobeying a
lawful command.  His punishment included forfeiture of $50.00.

9.  On 24 September 1980, the applicant accepted NJP for sleeping at his
post.  His punishment included reduction to private/E-1 (PV1), forfeiture
of $104.00 and confinement for seven days.

10.  On 3 November 1980, the detachment commander notified the applicant he
was initiating separation action on him under the provision of chapter 14,
Army Regulation 635-200.  The division commander cited frequent incidents
of a discreditable nature with civil or military authorities as the reason
for taking the action.

11.  On 3 November 1980, the applicant consulted with legal counsel and was
advised of the basis for contemplated separation and its effects, the
rights available to him, and of the effect of a waiver of those rights.
Subsequent to counseling, the applicant elected not to submit a statement
in his own behalf.

12.  On 8 January 1981, the separation authority directed the applicant’s
separation under the provision of paragraph 14-12b, Army Regulation 635-
200, and that he receive a UOTHC discharge.  On 22 January 1981, the
applicant was discharged accordingly.

13.  The DD Form 214 issued to the applicant upon his separation confirms
he completed a total of 3 years, 7 months and 2 days of creditable active
military service and that he held a rank of PV1 at the time of his
discharge.

14.  On 14 July 1982, after carefully considering the applicant’s entire
military record and the issues presented, the Army Discharge Review Board
(ADRB) determined the applicant’s discharge was proper and equitable, and
it voted to deny the applicant’s request for an upgrade of his discharge.

15.  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 those provisions.

16.  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 Army Discharge Review Board (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
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 applicant’s contention that he had a good record in Europe, and
that he did not deserve the discharge he received was carefully considered.
 However, this factor is not sufficiently mitigating to warrant the
requested relief.

2.  The evidence of record confirms that the applicant’s discharge
processing was accomplished in accordance with applicable regulations.  All
requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.  Finally,
the record shows the character of 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 14 July 1982.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 13 July 1985.  However, he failed to
file within the 3-year statute of limitations, and he 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

___JEA  _  __TEO__  __CAK __  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.




                                  ____James E. Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |ARAR2000004183                          |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-01                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1981/01/22                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 14 . . . . .             |
|DISCHARGE REASON        |misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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