RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            01 APRIL 2004
      DOCKET NUMBER:   AR2003094313


      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. Deborah L. Brantley           |     |Senior Analyst       |


  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Walter T. Morrison            |     |Member               |
|     |Mr. John T. Meixell               |     |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 under other than honorable conditions
discharge be upgraded.

2.  The applicant makes no statement.

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error or injustice which
occurred on 21 December 1981.  The application submitted in this case is
dated 7 July 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.  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 limitation 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.  Records available to the Board indicate that the applicant initially
entered active duty on 26 June 1976.  After successfully completing basic
combat training, the applicant commenced a series of AWOL (absent without
leave) periods for which he was punished twice under Article 15 of the
Uniform Code of Military Justice and convicted by a special court-martial.
When charges were preferred, after his last period of AWOL, the applicant
consulted with counsel and voluntarily requested discharge for the good of
the service in lieu of trial by court-martial.  His request acknowledged he
understood the nature and consequences of the undesirable discharge, which
he might receive.  He indicated he understood he could be denied some or
all veterans' benefits as a result of his discharge and that he may be
deprived of rights and benefits as a veteran under both Federal and State
law.

4.  His request was approved and on 7 October 1977 the applicant was
discharged, under other than honorable conditions, under the provisions of
Army Regulation 635-200, Chapter 10.  At the time he had 8 months and 28
days of creditable service and more than 190 days of lost time.

5.  On 10 June 1980 the applicant again enlisted in the Army.  He made no
reference to his prior military service in his enlistment documents.
Within 6 days of his entrance on active duty, the applicant again commenced
a series of AWOL periods which ultimately resulted in charges being
preferred against him.  There was still no mention of his prior military
service.

6.  Once charges were preferred the applicant again consulted with counsel
and voluntarily request discharge in lieu of trial by court-martial.  He
again acknowledged the consequence of receiving a discharge under other
than honorable conditions.

7.  His request was approved and on 21 December 1981 he was discharged,
under other than honorable conditions, under the provisions of Army
Regulation 635-200, Chapter 10.  At the time of his second discharge he had
accumulated
3 months and 22 days of creditable service and more than 400 days of lost
time.

8.  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.

9.  The applicant’s petition to the Board indicates that he was
incarcerated at the Federal Correctional Institution in Florence, Colorado
at the time he submitted his request.

DISCUSSION AND CONCLUSIONS:

1.  The evidence, which is available, indicates that the applicant was
discharged not once, but twice, under the provisions of Army Regulation 635-
200, Chapter 10, in order to avoid being court-martialed.  He has submitted
no probative evidence, or made any argument in support of his request.

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

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 December 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
20 December 1984.  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

__FNE __  __WTM _  __JTM __  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.




            ____Fred N. Eichorn _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003094313                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040401                                |
|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.                      |                                        |