RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2005
      DOCKET NUMBER:  AR20040004325


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathan 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 that his under other than honorable conditions
discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, after separating from the active Army
he served in the Alabama Army National Guard (ALARNG) and was honorably
separated.  He further states that based on his honorable service with the
ALARNG, he requests that his discharge be corrected to general under
honorable conditions.

3.  The applicant provides a DD Form 214 (Report of Separation from Active
Duty); a NGB Form 22 (Report of Separation and Record of Service); a U.S.
Army Quartermaster Corps Regiment Certificate of Affiliation; and four
letters of support. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 June 1979.  The application submitted in this case is dated
11 July 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 23 August 1977 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 63C (Track Vehicle Mechanic).

4.  On 27 October 1978, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) for the period 11 October 1978 through 13 October
1978.

5.  Records show that the applicant was AWOL for the period 22 November
1978 through 29 November 1978.

6.  A DD Form 458 (Charge Sheet), dated 2 May 1979, shows charges were
preferred against the applicant for being AWOL for the period 1 December
1978 through 16 April 1979.

7.  On 3 May 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 (Personnel Separations).  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.

8.  The applicant submitted a statement on his own behalf that stated, in
effect, that he joined the Army to learn a new skill that he could use in
civilian life.  He further stated that the reason he wanted out of the
military was that he was pushed to the point where he could not take the
treatment that he received from the noncommissioned officers and officers
of his old unit.  He concluded that he could not go to another unit and
live the life of a Soldier.

9.  On 15 May 1979, 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 4 June 1979, he was discharged
with a characterization of service as under other than honorable conditions
after completing 1 year, 4 months, and 19 days of active service with 144
lost days due to AWOL.

10.  A NGB Form 22 shows that the applicant served in the ALARNG from
9 January 1988 through 22 September 1997.  Item 5a (Rank) shows the entry
"SGT."  Item 15 (Decorations, Medal, Badges, and Commendations) shows the
entry "Army Achievement Medal, National Defense Service Medal, Army Service
Ribbon, Army Reserve Component Achievement Medal w/1 Bronze Oak Leaf
Cluster (950108), Faithful Service Medal of Alabama w/1 Bronze Saint Andrew
Cross (970108), and Marksman Badge with Rifle Bar."  Item 24 (Character of
Service) shows the entry "Honorable."

11.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 4 August 1995, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB determined that the applicant's
discharge was proper and equitable and that the discharge was properly
characterized as under other than honorable conditions.

12.  The applicant provides three letters of support from fellow associates
that state, in effect, that they have known him since he separated from the
service and that he is married with two children, he is a good person, and
a excellent worker.

13.  The applicant submitted a letter of support from a sheriff's deputy of
the Office of the Sheriff, Randolph County, Wedowee, Alabama, dated 29
March 2004.  The author stated that the applicant had no criminal record
and that he was a good person.

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.
The request may be submitted at any time after charges have been preferred
and must include the individual's admission of guilt. An under other than
honorable discharge is normally considered appropriate.

15.  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.

16.  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 ABCMR 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 post service conduct in the Army National Guard and
community is noteworthy.  However, good post service conduct alone is not a
basis for upgrading a discharge and, upon review, the good post service
conduct is not sufficient to mitigate his indiscipline in the Regular Army.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

3.  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.  The applicant's records show that he received one Article 15 and had
three instances of AWOL.  He had completed 1 year, 4 months, and 19 days
before his separation with a total of 144 lost days due to AWOL.  Based on
these facts, the applicant’s service clearly did not meet the standards of
acceptable conduct and performance of duty for Army personnel which are
required for issuance of an general discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 August 1995, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 3 August 1998.  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

__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.




                                  __ Mr. Raymond J. Wagner __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004325                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |15 March 2005                           |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |Mr. Chun                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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