RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 March 2005
      DOCKET NUMBER:  AR20040003237


      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. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John E. Denning               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 that his discharge under other than honorable
conditions be upgraded to a fully honorable discharge.

2.  The applicant states that his time in service and his record will show
that he did the best he could.  The applicant continues that he became an
alcoholic and drug user in Germany.

3.  The applicant further states that he served his country the best he
could considering his drinking history and drug use.

4.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and Orders 202-41, Headquarters, US
Army Armor Center and Fort Knox, dated 16 October 1980.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 21 October 1980, the date of his separation from active
service.  The application submitted in this case is dated 26 May 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 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 Army on 11 July 1979 for a period of 3
years.  He completed basic and advanced individual training and was awarded
military occupational specialty 31V10 (Tactical Communications Systems
Operator/Mechanic).  The applicant was separated from active duty under
conditions other than honorable on 21 October 1980.

4.  Records show that the applicant departed Germany on ordinary leave on
20 May 1980 and was scheduled to return to his unit on 18 June 1980.  He
did not return and was listed as AWOL by his chain of command on 19 July
1980.  The applicant subsequently surrendered to military authorities at
Fort Knox, Kentucky on 29 July 1980.

5.  A DA Form 458 (Charge Sheet), dated 1 August 1980, shows that the
applicant was charged with being AWOL for the period 19 June 1980 through
29 July 1980.

6.  The applicant's complete records were not available and circumstances
surrounding his discharge under the provisions of chapter 10, Army
Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of
trial by court-martial were not in the available records.

7.  The applicant's records contain a DA Form 3822-R (Report of Mental
Status Evaluation), dated 4 August 1980.  This form shows that the
applicant underwent a psychiatric evaluation by a medical officer at Fort
Knox.  The medical officer indicated that the applicant had no significant
mental illness and that he was mentally responsible, able to distinguish
right from wrong and adhere to the right, and had the mental capacity to
understand and participate in board proceedings.

8.  On 5 August 1980, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200.  The applicant
indicated in his request that he understood he could be discharged under
other than honorable conditions and furnished an Under Other Than Honorable
Conditions Discharge; that he may be deprived of many or all Army benefits;
that he may be ineligible for many or all benefits administered by the VA;
and that he may be deprived of his rights and benefits as a veteran under
both Federal and State law.  He also acknowledged that he may expect to
encounter substantial prejudice in civilian life because of an Under Other
Than Honorable Conditions Discharge.

9.  The applicant submitted a statement in his own behalf that stated that
he was 22 years old and completed 11 years of school and had received his
General Education Diploma.  The applicant continued that he felt it was in
his own best interest and the Army that he receive a chapter 10 discharge.


10.  The applicant further stated that he had been on his own since he was
15  years of old and that he believes that it was those conditions that led
him to join the Army.  The applicant continued that all he wanted to do was
marry and settle down in Lexington, Kentucky.  He further stated that he
had a good job and that his girlfriend was pregnant with his child and they
planned to get married.

11.  The applicant continued that he really tried his best during the time
he spent in the service in the United States and Germany; however, the Army
was not the place for him.  He noted that all his life he had been kicked
around from one place to another and all he wanted out of life was to be
married, have a family, and make things better for them than they had been
for him.  The applicant concluded that he was going back to school to be a
master in cabinet making and hoped that his problems were understood.

12.  On 22 September 1980, the applicant's commander recommended approval
of the applicant's request for discharge for the good of the service.  The
commander stated that the applicant's conduct had rendered him triable by
court-martial under circumstances which could lead to a bad conduct or
dishonorable discharge.  The commander further stated that, based on the
applicant's previous record, punishment would have minimal rehabilitative
effect.

13.  On 26 September 1980, the appropriate authority approved the
applicant's request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200.  On 21 October 1980,
he was discharged with a characterization of service as under other than
honorable conditions after completing 1 year, 2 months, and 1 day of active
service with 40 days of lost time due to AWOL.

14.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

15.  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.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separation), paragraph 3-7, 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 (emphasis added), or is otherwise so
meritorious that any other characterization would be clearly inappropriate.
 Whenever there is doubt, it is to be resolved in favor of the individual.

17.  Army Regulation 635-200, paragraph 3-7, 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.

18.  Army Regulation 635-200 set forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 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 contends that his discharge under other than honorable
conditions should be upgraded to a fully honorable discharge.

2.  The applicant's request for separation under provisions of chapter 10
of   Army Regulation 635-200 for the good of the service to avoid trial by
court-martial was administratively correct and in compliance with
applicable regulations.

3.  The applicant's complete records are not available.  However, in the
absence of evidence to the contrary, it is determined that all requirements
of law and regulations were met and the rights of the applicant were fully
protected throughout the separation process.

4.  After a review of the applicant’s entire record of service, it is
evident that his quality of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
he is not entitled to an honorable discharge.

5.  The applicant's record of service shows completion of only 1 year, 2
months, and 21 days of his 3-year obligation and that he had 40 days of
lost time.  Therefore, the applicant's service does not warrant upgrade of
his discharge from under other than honorable conditions to a general
discharge.

6.  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 did not submit any evidence that would
satisfy this requirement.

7.  The applicant contends that he became an alcoholic and had a history of
drinking and drug use.  However, is no evidence that the applicant was
diagnosed or treated for alcohol dependency or that he requested assistance
from his chain of command or medical personnel.

8.  There is no evidence and the applicant has not provided evidence that
shows alcohol dependency or drug use was the reason for his indiscipline.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 October 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 20 October 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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jed___  __jrs___  __mjf___  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.


                                        John E. Denning
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003237                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050317                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19801021                                |
|DISCHARGE AUTHORITY     |AR 635-200, CHAP 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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