RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050005171


      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. Joyce A. Wright               |     |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 discharge, characterized as
under other than honorable conditions (UOTHC), be upgraded to a general
discharge (GD) under honorable condition, with benefits, or to a medical
discharge, with benefits.

2.  The applicant states, in effect, that he was bipolar since 1970 and was
a drug addict and an alcoholic before and after service.  He injured his
right shoulder at Fort Riley, Kansas, in 1976.  He was diagnosed as 20
percent disabled in 1982 and appeared before a traveling Army Discharge
Review Board (ADRB).   He was never seen by a doctor and wants to receive
disability pay.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) and an attachment, in support of his request.  However,
the attachment is unavailable for review.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 April 1978, the date of his discharge.  The application
submitted in this case is dated 29 March 2005 but, was received on 7 April
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 military records show he entered active duty on 24 June
1975, as a UH-1 helicopter repairman (67N).  He was promoted to specialist
four (SPC/E-4) effective 1 February 1977. 

4.  On 15 April 1976, he was punished under Article 15, Uniform Code of
Military Justice (UCMJ), for failure to go to his appointed place of duty.
His punishment consisted of a forfeiture of pay and 14 days extra duty.



5.  The applicant received a letter of Notification for Dishonored Check
(second incident), dated 15 April 1977, for insufficient funds on 26 March
1977 and a Letter of Indefinite Suspension of Check Cashing Privileges,
dated 17 May 1977, for his check written on 26 March 1977.

6.  On 25 August 1977, he was punished under Article 15, for being absent
without leave (AWOL) from 13 to 31 July 1977 and for being absent from his
appointed place of duty.  His punishment consisted of a reduction to pay
grade E-3, a forfeiture of pay, and 45 days restriction and extra duty.

7.  On 8 July 1977, the applicant was charged by civil authorities for
unlawfully, feloniously, willfully, knowingly, and without authority,
entering into a private residence, with intent to commit a theft, in
Dickinson County, Kansas.  He also exerted unauthorized control over
private property, valued at more than $50.00, with the intention to
permanently deprive the owner.

8.  The applicant consulted with counsel and pled guilty to burglary.  He
was sentenced to a term of imprisonment of not less than one (1) nor more
than ten (10) years in the custody of the Secretary of Corrections, State
of Kansas.

9.  On 18 January 1978, the applicant's commander notified him by mail that
he was being processed for separation, under the provisions of Army
Regulation 635-206, for his civil conviction.  He was afforded the
opportunity to exercise his rights such as:  consult with counsel; request
appointment of military counsel to represent him, and in his absence,
present his case before a board of officers; submit a statement in his
behalf; waive the forgoing rights in writing; or decline to reply to this
letter of notification within 30 days.

10.  On 15 February 1978, the commander recommended that separation
documents be initiated for the applicant who was currently serving in the
Kansas State Industrial Reformatory.

11.  After consulting with counsel, the applicant requested consideration
of his case by and appearance before a board of officers.  He also
requested representation by counsel and that, if convicted, he did not
intend to appeal his conviction.  He understood that, as a result of
issuance of a discharge under conditions other than honorable, he may be
ineligible for many or all benefits as a veteran under both Federal and
State Laws and that he may expect to encounter substantial prejudice in
civilian life.

12.  The administrative separation board convened on 17 March 1978.  The
applicant was not present but was represented by counsel, who was afforded
full authority to present evidence in the applicant's behalf.
13.  The board considered the evidence before it and found that the
applicant was undesirable for further retention in the military service due
to his confinement with civil authorities.

14.  The board recommended that he be discharged from the service because
of misconduct, with issuance of a UOTHC discharge certificate.  The
appropriate authority approved the findings and recommendations of the
board of officers on 12 April 1978.

15.  The applicant was discharged on 20 April 1978, under the provisions of
Army Regulation 635-200, chapter 14, for misconduct-conviction by civilian
authorities.  He had served 2 years, 1 month, and 17 days of total active
service and had 250 days of lost time due to AWOL and confinement.

16.  The applicant applied to the ADRB for an upgrade of his discharge on
18 August 1983.  He requested a hearing before a traveling ADRB panel;
however, in the absence of himself and his counsel, his case was considered
by a records review.  The ADRB determined that his discharge was proper and
equitable and denied his request on 3 January 1986.

17.  Army Regulation 635-206, in effect at that time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 33 of the
regulation provided, in pertinent part, that members convicted by civil
authorities would be considered for separation.  An under other than
honorable conditions discharge was normally considered appropriate. 

18.  Army Regulation 635-200, currently in effect, 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, conviction by civil
authorities, desertion or absence without leave.  Action can be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally considered appropriate.

19.  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.


20.  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 administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights. 

2.  The type of discharge directed and the reason therefore were
appropriate considering all of the available facts of the case.

3.  The applicant was advised of the effects of a discharge under other
than honorable conditions and that he might be deprived of many or all
benefits as a veteran under both Federal and State Laws and that he may
expect to encounter substantial prejudice in civilian life.

4.  The Board notes the applicant’s contentions that he was bipolar since
1970, a drug addict and an alcoholic before and after service, that he
injured his right shoulder at Fort Riley, Kansas in 1976, and that he was
diagnosed as being     20 percent disabled in 1982.  However, there is no
evidence in the available records, and the applicant has provided no
evidence, to support his contentions.  His medical records are unavailable
for review and there is no evidence to show that he requested a separation
medical examination prior to his discharge.

5.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

6.  The Board acknowledges the applicant's desire to have his UOTHC
discharge upgraded; however, the Board does not change the character of
service for the purpose of an applicant obtaining eligibility for VA or
other available benefits.


7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 3 January 1986.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 2 January 1989.  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

_RJF___  _WDP____  __TMR__  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                 |AR20050005171                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780420                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 206/14                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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