RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         19 October 2005
      DOCKET NUMBER:  AR20050008799


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Hubert O. Fry                 |     |Member               |
|     |Mr. Robert Rogers                 |     |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, that even after the Army became aware
of his bad health and that he had seizures, he was still retained and
continued working in the hospital.  He states that during the time of his
court-martial, he continued to work honorably for months even though his
health was not good and he continued to have seizures.  He further states
that he is now legally disabled.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 July 1981.  The application submitted in this case is
dated
24 May 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 Army and entered active
duty on 26 June 1980.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.

4.  On 23 June 1981, a Charge Sheet (DD Form 458) was prepared preferring
four court-martial charges against the applicant for violating Articles 91,
95, 108 and 134 of the Uniform Code of Military Justice (UCMJ).  Charge I
was for assaulting and disrespecting his superior noncommissioned officer.
Charge II was for resisting lawful apprehension by the military police.
Charge III was for damage of military property.  Charge IV was for breaking
restriction and being drunk and disorderly.

5.  On 24 July 1981, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UOTHC discharge and of the rights available to him.
Subsequent to receiving this legal counsel, the applicant voluntarily
requested discharge for the good of the service, in lieu of trial by court-
martial.

6.  In his request for discharge, the applicant acknowledged he understood
that if his discharge request was approved, he could be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.  He further indicated that he understood that he could encounter
substantial prejudice in civilian life by reason of an UOTHC discharge.

7.  On 28 July 1981, the separation authority approved the applicant’s
request for discharge and directed that he be reduced to the lowest
enlisted grade, and that he receive an UOTHC discharge.  On 30 July 1981,
the applicant was discharged accordingly.  The DD Form 214 he was issued
confirms he completed a total of 1 year and 28 days of creditable active
military service.

8.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade to his discharge within its 15-year
statue of limitations.

9.  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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.
An UOTHC discharge is normally considered appropriate for members separated
under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.   The applicant's request to have his UOTHC discharge upgraded because
he is now legally disabled was carefully considered.  However, this factor
is not sufficiently mitigating to warrant an upgrade of his discharge at
this time.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  The record further confirms
all requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.

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 should have discovered the alleged error or
injustice now under consideration on 30 July 1981.  Therefore, the time for
him applicant to file a request for correction of any error or injustice
expired on
29 July 1984.  He failed to 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

___BSE _  __ HOF _  __RR ___  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.




                                  ____ Barbara J. Ellis_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008799                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-10-19                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1981/07/30                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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