RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050006804


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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
(UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states that he made some bad choices when he was in the
service and he regrets them now.  He is hoping to go into law enforcement
and it would help if his DD Form 214 (Report of Separation from Active
Duty) was upgraded.  He has made good choices and has worked as a paramedic
for 10 years.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 August 1977.  The application submitted in this case is dated
27 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 entered active duty on 28 April 1976 for a period of
three years. He completed basic training and advanced individual training
and was awarded military occupational specialty 11E (Armor Crewman).  He
was promoted to private first class on 1 December 1976.

4.  On 14 March 1977, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for failing to go to his
appointed place of duty on two separate occasions.  His punishment
consisted of a forfeiture of $60.00 per month for one month and extra duty
for a period of 14 days.

5.  On 19 April 1977, the applicant accepted nonjudicial punishment under
Article 15 for behaving himself with disrespect toward his superior
commissioned officer, disobeying a lawful command from his superior
commissioned officer, disobeying a lawful order from his superior
noncommissioned officer, and being disrespectful in language toward his
superior noncommissioned officer.  His punishment consisted of a reduction
to the grade of private E-2, forfeiture of $100.00 pay per month for 2
months and extra duty for a period of 7 days.

6.  He was absent without leave (AWOL) on 9 May 1977 and he surrendered to
military authorities on 5 July 1977.

7.  The applicant underwent a physical examination on 7 July 1977 and was
found qualified for separation with a physical profile of 111111.  He also
underwent a mental status evaluation on an unknown date.

8.  The applicant's discharge packet is not available.  However, his DD
Form 214 shows he was discharged on 2 August 1977 under the provisions of
Army Regulation 635-200, chapter 10 for the good of the service – in lieu
of court-martial with issuance of an UOTHC discharge.  He completed 1 year,
1 month and 7 days creditable active service with 58 days of lost time.

9.  On 30 April 1980, the Army Discharge Review Board denied the
applicant's request for an upgrade of his discharge.

10.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge UOTHC
is normally considered appropriate.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor.  Issuance of an honorable discharge
is predicated upon proper military behavior and proficient performance of
duty during the member's current enlistment or period of obligated service
with due consideration to the member's age, length of service and general
aptitude.  Where a member has served faithfully and performed to the best
of his or her ability, an honorable discharge certificate should be
furnished.

13.  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.  In the absence of the applicant's chapter 10 discharge proceedings, the
applicant's voluntary request for separation under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, to avoid trial
by court-martial, is presumed to have been administratively correct and in
conformance with applicable regulations.

2.  The applicant's service record shows he received two Article 15s and
was AWOL for 58 days.

3.  Although the applicant's discharge packet is not available, it is
presumed the separation authority appropriately directed issuance of an
UOTHC discharge based on his overall record.

4.  The applicant's contentions have been noted; however, he has failed to
show through the evidence submitted or the evidence of record that the type
of discharge issued to him was in error or unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 April 1980, the date of the ADRB;
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 29 April 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

JH______  RB______  JM______  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 Hise____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006804                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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