RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 March 2005
      DOCKET NUMBER:  AR20040004290


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 undesirable discharge be upgraded to an
honorable discharge.

2.  The applicant states that he served over 2 years on his 3-year
enlistment.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 February 1979, the date of his separation from active
service.  The application submitted in this case is dated 18 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 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 Regular Army on 15 September 1976 for a
period of 3 years.  He successfully completed basic combat training and
advanced individual training and was awarded the military occupational
specialty 76D10 (Materiel Supplyman).

4.  On 12 October 1978, the applicant, while assigned to Fort Lewis,
Washington, received nonjudicial punishment (NJP) under Article 15, Uniform
Code of Military Justice (UCMJ) for failure to go to his appointed place of
duty at the prescribed time for the period 29 August 1978 to 31 August
1978.  His punishment consisted of forfeiture of $233 pay per month for 2
months with 1 month suspended and reduction to private/pay grade E-2.

5.  A DA Form 268 (Report of Suspension of Favorable Personnel Actions),
dated 17 November 1978, shows that the applicant was reported AWOL on
18 October 1978.  He was subsequently dropped from the unit rolls on
17 November 1978.

6.  On 8 January 1979, the applicant returned from his unauthorized absence
and reported to military authorities at Fort Lewis, Washington.
7.  A DA Form 458 (Charge Sheet), dated 15 January 1979, shows that the
applicant was charged with being absent without leave (AWOL) for the period
18 October 1978 to 8 January 1979.

8.  On 17 January 1979, 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 the
reason he wanted out of the Army was due to his mother.  He explained that
his mother had undergone breast surgery previously and was having trouble
with her shoulder and needed hospital treatment.  The applicant also stated
that his mother was 52 years of age and had remarried a few years earlier;
however,  things were not going well.

10.  The applicant continued that his mother worried about him all the time
and that when he went to Korea his mother wanted him to get out of the
Army.
He further stated that that his brother was being treated for drugs at the
Veterans Administration.

11.  On 23 January 1979, the applicant's unit commander recommended
approval of the applicant's request for a discharge for the good of the
service.  The unit commander further stated that he counseled the applicant
and found him to be completely unmotivated, incorrigible, and without
rehabilitative potential.

12.  On 29 January 1979, the applicant received NJP under Article 15, UCMJ
for using disrespectful language towards his superior noncommissioned
officer.  The applicant was also charged with dereliction in the
performance of his duties on
26 January 1979 by failing to remain awake while on duty.  His punishment
consisted of forfeiture of $100 per month for 1 month.

13.  On 1 February 1979, the Commanding General at Fort Lewis approved the
applicant's request for discharge for the good of the service under the
provisions of chapter 10 of Army Regulation 635-200.  He stated that the
interests of justice would not be served by confinement or court-martial
and that any further expenditure of funds and resources to prosecute the
applicant was not justified.

14.  On 12 February 1979, the applicant was discharged with a
characterization of service as under other than honorable conditions after
completing 2 years,
2 months, and 5 days of active service with 83 days lost time due to AWOL.

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

16.  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.

17.  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.

18.  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.

19.  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 undesirable discharge under other than
honorable conditions should be upgraded to an 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.  Evidence shows the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time.  Lacking 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 he completed 2 years,
2 months, and 5 days of his 3-year obligation.  However, he had 83 days of
lost time.  Therefore, the applicant's service does not warrant upgrade of
his 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 submitted a statement in his own behalf which stated his
mother was experiencing difficulties and required medical care.  However,
there is no evidence and the applicant did not provide any which shows that
he contacted his chain or command for assistance or guidance regarding his
family problems.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 February 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 11 February 1982.  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

__wdp___  __rjw___  __lgh___  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.



                                        William D. Powers
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004290                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050331                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19790212                                |
|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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