RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2007
      DOCKET NUMBER:  AR20060013905


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 under other than
honorable conditions (UOTHC) be upgraded.

2.  The applicant states that an error was made due to the fact he has bi-
polar disorder.  He was mentally ill at the time.

3.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a card/message praising Governor
Schwarzenegger; three letters of support; and an Administrative Discharge
Questionnaire.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 16 December 1982.  The application submitted in this case
is dated 14 September 2006

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 enlisted in the Regular Army on 22 May 1979.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 13B (Cannon Crewman).  He was promoted to
Specialist Four, E-4 on 1 February 1981.  He was honorably discharged on 23
November 1981 for the purpose of immediately reenlisting on 24 November
1981.

4.  The applicant’s discharge packet is not available.  His Army Discharge
Review Board (ADRB) proceedings show charges were preferred against the
applicant for being absent without leave (AWOL) from 15 September 1982
through 6 November 1982.  He was counseled by an officer of the Judge
Advocate General’s Corps and requested discharge under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service.  The ADRB
proceedings indicate he did not submit a statement with his request.

5.  The ADRB proceedings show the appropriate authority approved the
applicant’s request and approved a discharge UOTHC.
6.  On 16 December 1982, the applicant was discharged, with a discharge
UOTHC, under the provisions of Army Regulation 635-200, chapter 10, for the
good of the service.  He had completed 3 years, 5 months, and 3 days of
creditable active service and had 52 days of lost time.

7.  On 27 October 1983, the ADRB denied the applicant's petition to upgrade
his discharge.

8.  The applicant provided an Administrative Discharge Questionnaire.  When
asked the question if he had any drug/alcohol problems in the service, he
answered “yes” and stated “I thought I was in charge and what I said
concluded in my job condition.”  When asked the question if drugs or
alcohol had anything to do in any way with his discharge, he answered “yes”
and stated “It didn’t help my bi-polar conditions and I had experienced the
dillusions (sic) being under the influence of narcotics.”

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
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.
A discharge under other than honorable conditions is normally considered
appropriate;

10.  Army Regulation 635-200, paragraph 3-7a, 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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, 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.  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 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 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 contentions have been carefully considered.  However,
there is no evidence of record and he provides no evidence to show that his
having   bi-polar disorder was the cause of the misconduct that led to his
discharge or when he was diagnosed with bi-polar disorder.

2.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time and that his discharge UOTHC appropriately
characterizes his service during his last enlistment.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 27 October 1983.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 26 October 1986.  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

__wdp___  __wfc___  __ded___  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                 |AR2000013905                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070426                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19821216                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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