RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 March 2005
      DOCKET NUMBER:  AR20040003420


      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. 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, in effect, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that he was told at a discharge
briefing that he would be given a general, under honorable conditions
discharge (GD).  He claims he never received any paperwork that indicated
he was receiving an UOTHC discharge.  He further states that he knew
nothing about the type of discharge until he received paperwork on another
decision that reflected the type of discharge.  He further states that at
the time of his enlistment, he was told there would be plenty of housing
and this is the reason he decided to take his family home.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 14 April 1978.  The application submitted in this case is
dated
22 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 shows that he served on active duty from 13
October 1964 through 29 November 1965, at which time he was honorably
separated at the expiration of his term of service.  The separation
document (DD Form 214) he was issued for this period of active duty service
shows he held the rank of specialist five (SP5) and earned the National
Defense Service Medal, Vietnam Campaign Medal, Vietnam Service Medal with 4
bronze service stars, Army Good Conduct Medal and Sharpshooter
Qualification Badge with Rifle Bar.

4.  On 9 March 1977, the applicant reenlisted in the Army and entered
active duty on the enlistment under review.  He completed basic training at
Fort Leonard Wood, Missouri and advanced individual training (AIT) at Fort
Sill, Oklahoma.  Upon completion of AIT, he was awarded military
occupational specialty (MOS) 17B (Radar Crewman) and he was assigned to
Fort Ord, California.

5.  On 8 September 1977, the applicant departed absent without leave (AWOL)
from his unit at Fort Ord.  He remained away for 91 days until returning to
military control at Fort Knox, Kentucky on 8 December 1977.

6.  On 20 December 1977, 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
8 September through on or about 7 December 1977.

7.  On 20 December 1977, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge and of the procedures and rights that were
available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

8.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, 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 that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

9.  On 9 March 1978, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
14 April 1978, the applicant was discharged accordingly.  The DD Form 214
he was issued confirms he completed 10 months and 6 days of creditable
active military service on the enlistment under review and that he had
accrued 91 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.
11.  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 never properly informed of the
type of discharge he was receiving was carefully considered.  However, the
evidence of record confirms he 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.

2.  The record further confirms that the applicant’s separation processing
was accomplished in accordance with applicable regulations.  All
requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 April 1978.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 13 April 1981.  However, he failed to 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                 |AR20040003420                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/17                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1978/04/14                              |
|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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