RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040003152


      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          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that his discharge was the result of
poor judgment on his part.  He claims that he was a good Soldier through
basic training and received complimentary remarks from sergeants and
officers who were familiar with his progress.

3.  The applicant claims that while in advanced individual training (AIT),
a number of his fellow Soldiers seemed to take a dislike to him and started
beating him.  He believes part of the reason for the beatings was that he
was the smallest Soldier in his unit.  He states that he took the problem
to his platoon sergeant and platoon leader (lieutenant) and was told that
the matter would be investigated, but that in the meantime he would have to
deal with it.  He claims the beatings continued and because he was afraid
and friendless, he made the stupid decision to go absent without leave
(AWOL).  Not long after, on the advise of family members, he surrendered to
military authorities.

4.  The applicant further states that he was ultimately given the choice of
facing a court-martial, or receiving a quick discharge.  Not knowing whom
to trust, he accepted the discharge without fully understanding what he was
doing.  He states the discharge was UOTHC and it seems to him given the
circumstances, this was an inequitable outcome.  He states that he is sorry
for the mistake he made and wishes he could change things, but he can’t.
He claims his discharge is a barrier to employment and stands in the way of
his efforts to rebuild his life and become a responsible citizen.

5.  The applicant provides a self-authored statement and two supporting
character references, from a veterans’ case officer and a friend, in
support of his application.
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 March 1980.  The application submitted in this case was
received on 24 June 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 reveals that he enlisted in the United States
Army Reserve (USAR) on 29 January 1979.  He attended basic combat training
at
Fort Dix, New Jersey from 9 March through 24 April 1979 and was reassigned
to
Fort Eustis, Virginia to attend advanced individual training.

4.  The applicant’s record confirms that the applicant entered the Army in
the rank of private/E-1 and never advanced beyond that grade.  His record
documents no acts of valor, significant achievement, or service warranting
special recognition.

5.  On 3 September 1979, the applicant departed AWOL for his AIT unit at
Fort Eustis, and on 3 October 1979, he was dropped from the rolls of the
organization.  He remained away until returning to military control at
Fort Knox, Kentucky on 20 December 1979.

6.  On 29 December 1979, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ), by being AWOL
from on or about
3 September through on or about 20 December 1979.

7.  On 7 January 1980, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial and the
maximum permissible punishment authorized under the UCMJ.  He was also
advised of the possible effects of an UOTHC discharge and of the procedures
and rights available to him.  Subsequent to this counseling, he voluntarily
requested discharge under the provisions of chapter 10, Army Regulation 635-
200, for the good of the service, in lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated he understood the
implications associated with his discharge request and that by requesting
discharge, he was acknowledging that he was guilty of the charge against
him, or of a lesser included offense that authorized the imposition of a
bad conduct or dishonorable discharge.  He further stated that under no
circumstances did he desire rehabilitation because he had no desire to
perform further military service.

9.  In his discharge request, the applicant acknowledged that he understood
he could receive an UOTHC discharge, that 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 denied of his
rights and benefits as a veteran under both Federal and State law.  He
finally confirmed that he understood he could encounter substantial
prejudice in civilian life because of an UOTHC discharge.

10.  The applicant submitted a statement with his discharge request.  This
statement indicates he came in the Army in order to learn a trade so that
he could get a good job in future years.  He further stated that he wanted
to get out of the Army because he did not like being treated like dirt,
like he had been since he entered active duty.  He further commented that
he especially did not like being humiliated in front of his fellow
Soldiers, as he had been for nine months.

11.  On 8 February 1980, the separation authority approved the applicant’s
request for discharge and directed he receive an UOTHC discharge.  On
28 March 1980, the applicant was discharged accordingly.  The DD Form 214
he was issued confirms he completed a total of 3 months and 9 days of
creditable active military service and accrued a total of 108 days of time
lost due to AWOL.  The separation document confirms the applicant earned no
awards or decorations during his active duty tenure.

12.  The third-party supporting statements provided by the applicant
support his request based on the version of events the applicant presented
and attest to his good character and post service conduct.

13.  There is no indication in the record that the applicant applied to the

Army Discharge Review Board (ADRB) for an upgrade of his discharge within
its 15-year statute of limitations.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was beaten by fellow Soldiers while
in AIT and this was the reason he went AWOL was carefully considered.
However, there is no evidence of record to support this claim.  Further,
the applicant completed a statement during his separation process in which
he admitted that he did not like the way he was treated in the Army and
wanted out for this reason.  He made no reference to being beaten and
providing no other mitigating factors for his misconduct.

2.  The third-party character references submitted by the applicant were
also carefully considered.  However, while admirable, his post service
conduct alone does not support an upgrade of his discharge at this late
date.

3.  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, the applicant voluntarily
requested discharge from the Army 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.  Finally, it is concluded that the applicant’s
discharge accurately reflects his overall record of short and
undistinguished service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 March 1980.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 27 March 1983. 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
timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW_  ___JTM__  ___JKR _  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                 |AR20040003152                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/03/15                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/03/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|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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