RECORD OF PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            04 MARCH 2004                  
	DOCKET NUMBER:   AR2003093381

	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	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Mr. Kenneth L. Wright		Member	
	Mr. Eric N. Andersen		Member	

	The applicant and counsel if any, did not appear before the Board.

	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 discharge under other than honorable conditions be upgraded to honorable. 

2.  The applicant states that when he was discharged he was informed that within six months he could have his discharge upgraded to honorable.  He is now           42 years old, has matured, and is trying to straighten out his life.  

3.  The applicant provided no evidence.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error or injustice which occurred on 29 May 1980.  The application submitted in this case is dated 18 June 2003.  

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.  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.

3.  The applicant enlisted in the Army for three years on 23 March 1978, completed training, and in September 1978 was assigned to Fort Polk, Louisiana as an equipment maintenance clerk.  In December 1979 he was promoted to pay grade E-4.   

4.  On 26 March 1980 the applicant went AWOL (absent without leave).  He returned to duty on 8 April 1980.  

5.  On 16 April 1980 the applicant received nonjudicial punishment under       Article 15, Uniform Code of Military Justice (UCMJ) for the above-mentioned AWOL period.  His punishment included confinement for 30 days in the Correctional Confinement Facility to commence on 21 April 1980.  The applicant did not appeal the punishment.

6.  On 22 April 1980 court-martial charges were preferred against the applicant for willfully disobeying a lawful command from a commissioned officer to serve the punishment of correctional custody for 30 days to commence on 21 April 1980, and for willfully disobeying the lawful order of two noncommissioned officers.   

7.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He stated that he was making the request of his own free will and had not been coerced by any person.  He stated that he was guilty of the charges against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he want further rehabilitation, for he did not want to perform further military service.  He stated that he understood the nature and consequences of the other than honorable conditions discharge that he might receive.  The applicant submitted a statement to the effect that he was having family problems and financial problems.  He stated that his wife was very sick, and as far as the military was concerned, he could not afford to support her, family wise or money wise.

8.  On 21 May 1980 the separation authority approved the applicant's request and directed that he be issued a discharge certificate Under Other Than Honorable Conditions.  The applicant was discharged on 29 May 1980.

9.  On 15 August 1980, in an unanimous opinion, the Army Discharge Review Board denied the applicant's request to upgrade 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 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.  A discharge under other than honorable conditions is normally considered appropriate. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  There is no error in the applicant's records or an injustice done to him.  His request to upgrade his discharge is not granted.     

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 15 August 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on          14 August 1983.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__KAN __  __KLW__  __ENA __  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.

		__Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID	AR2003093381	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040304	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.