RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 January 2005
      DOCKET NUMBER:  AR20040000403


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner .           |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that he joined the Army for military
occupational specialty (MOS) 11E (Armor Crewman) training and assignment to
Fort Knox, Kentucky.  He claims his recruiter told him that he would remain
at Fort Knox and he would not have overseas service or be subject to Levy’s
during his first enlistment.  It was under these terms that he agreed to
join the Army.  In 1976, he married and started a family with the intention
of making the Army a career after completing his four years of service in
the United States.  He states his wife became pregnant with complications
and because no immediate family members were available to care for her, he
was the only provider.  About four months after his wife became pregnant,
he came down on orders for Germany.  He requested to delay the reporting
date until after the baby was born, but this request was denied.  At this
point, he became frustrated and scared of what would happen to his family
if he was not there to provide for them.  At this time, he decided to go
absent without leave (AWOL), which was poor judgment on his part.  He
further states after his discharge, he went home to Indiana and made the
best of a bad situation, hoping someday the Army would forgive him and his
family because he was so young and irresponsible at the time.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 December 1980.  The application submitted in this case
is dated 13 April 2004.

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.  The applicant’s record shows he enlisted in the Regular Army and
entered active duty on 29 September 1975.  The applicant’s enlistment
contract
(DD Form 4) confirms, in the attached Record of Military Processing/Armed
Forces of the United States (DD Form 1966) that he enlisted for training in
MOS 11E and assignment to the 194th Armored Brigade, Fort Knox, Kentucky.

4.  A Statement of Enlistment/US Army Airborne Enlistment Option (DA Form
3286-13 included with the applicant’s enlistment contract confirms his
assignment to the 194th Armored Brigade, Fort Knox, Kentucky.  This
document also stipulates he was guaranteed a minimum assignment of 16
months at this unit, and that upon completion of 16 months of service with
the Continental United States (CONUS) unit for which he enlisted, he could
be reassigned to meet the needs of the Army.  The applicant authenticated
this document with his signature on 9 September 1975.

5.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), shows he was promoted to sergeant
(SGT) on 28 February 1978 and this was the highest rank he attained while
serving on active duty.  It also shows that on 11 April 1979, he was
reduced to specialist four (SP4) and on 6 November 1980, he was reduced to
private/E-1 (PV1).

6.  Item 9 (Awards, Decorations and Campaigns) of the applicant’s DA Form 2-
1 shows that during his active duty tenure, he earned the Marksman
Qualification Badge with Rifle Bar and the Expert Qualification Badge with
Pistol Bar.  There are no individual awards listed.  The record documents
no acts of valor, significant achievement or service warranting special
recognition.

7.  Item 21 (Time Lost)  of the applicant’s DA Form 2-1 shows he was AWOL
for 232 days from 10 July 1978 through 26 February 1979 and for 540 days
from 24 April 1979 through 14 October 1980.

8.  On 11 April 1979, a summary court-martial convicted the applicant of
violating Article 86 of the Uniform Code of Military Justice (UCMJ), by
being AWOL from on or about 10 July 1978 through on or about 27 February
1979.  The resultant sentence included a reduction to SP4, forfeiture of
$250.00 and 60 days restriction.

9.  The applicant’s Military Personnel Records Jacket (MPRJ) does not
include a separation packet containing the facts and circumstances
surrounding the applicant’s separation.

10.  The record does include a separation document (DD Form 214) that shows
the applicant was discharged UOTHC on 11 December 1980, under the
provisions of chapter 10, Army Regulation 635-200, by reason of
administrative discharge conduct triable by court-martial,  This document
further shows that at the time of his discharge, he had completed 3 years,
1 month and 5 days of creditable active military service and had accrued
772 days of time lost due to AWOL.

11.  The MPRJ also contains an Army Discharge Review Board (ADRB) Case
Report & Directive prepared on 13 September 1982, when the ADRB considered
the applicant’s case.  This document contains a summary of the facts and
circumstances surrounding the applicant’s discharge.

12.  The ADRB facts and circumstances summary shows that on 20 October
1980, a court-martial charge was preferred against the applicant for AWOL
from 24 April 1979 through 15 October 1980.  On 21 October 1980, the
applicant consulted with legal counsel and requested discharge for the good
of the service, in lieu of trial by court-martial.  On 6 November 1980, the
separation authority approved the applicant’s request for discharge and
directed he receive an UOTHC discharge and on 11 December 1980, the
applicant was discharged accordingly.

13.  On 13 September 1982, the ADRB, after carefully evaluating the
applicant’s case, determined his discharge was proper and equitable and
denied his request for an upgrade of his discharge.

14.  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.
15.  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 Board 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 contention that his understanding that he would serve
his entire enlistment in CONUS was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms the terms of the applicant’s enlisted
contract were satisfied and that he was assigned to the unit promised for
over 16 months before being placed on assignment to Germany.

3.  The applicant’s claim that he used poor judgment and has been a good
citizen since his discharge was also considered.  However, good post
service conduct alone is not sufficiently mitigating to warrant an upgrade
of his discharge.

4.  The facts and circumstances surrounding his discharge processing are
not on file.  However, there is a properly constituted DD Form 214 on file
that contains the authority and reason for his discharge.  This document
confirms the applicant was separated for the good of the service, in lieu
of trial by court-martial.  This DD Form 214 carries with it a presumption
of government regularity in the separation process.

5.  Further, the ADRB case summary on file confirms the applicant was
charged with the commission of an offense punishable under the UCMJ with a
punitive discharge.  After consulting with defense counsel, the applicant
voluntarily requested discharge from the Army in lieu of trial by court-
martial.  In doing so, he admitted guilt to an offense under the UCMJ that
authorized a punitive discharge.  Lacking evidence to the contrary, it is
concluded that all requirements of law and regulation were met and that the
rights of the applicant were fully protected throughout the separation
process.

6.  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.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 13 September 1982.  As
a result, the time for him to file a request for correction of any error or
injustice to this Board expired on 12 September 1985.  However, he 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ECP_  ___BKK__  __RJW__  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.




            ___Raymond J. Wagner ___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040000403                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/01/27                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/12/11                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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