RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 April 2005
      DOCKET NUMBER:  AR20040004631


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 children were taken from him while he was
in the field and he only wanted to get them back.  The applicant continues
that he was too young to be married and the military wanted Soldiers but
could not help him with his marital problems so he took matters in his own
hands.

3.  The applicant further states that he has applied for employment with
various law enforcement agencies and Homeland Security because they need
all the help they can get.

4.  The applicant provides a self-authored letter, a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty), and a DD Form
93 (Record of Emergency Data).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 September 1997, the date of his separation from active
service.  The application submitted in this case is dated 18 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 Army on 16 July 1996 for a period of 4
years.
He completed basic and advanced individual training and was awarded
military occupational specialty 11M10 (Fighting Vehicle Infantryman).
The applicant was separated from active duty under other than honorable
conditions on 23 September 1997.

4.  A DD Form 458 (Charge Sheet), dated 5 June 1997, shows the applicant's
unit at Fort Hood, Texas reported him absent without leave (AWOL) on 5 May
1997.

5.  A DA Form 4187 (Personnel Action) dated 8 June 1997 shows that the
applicant's status was listed as AWOL and he was dropped from the rolls for
desertion.

6.  On 25 June 1997, the applicant surrendered to military authorities in
Hempstead, New York.  On 3 July 1997, the applicant was transferred to the
U.S. Army Personnel Control Facility at Fort Knox, Kentucky.

7.  On 30 June 1997, 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.

8.  The applicant's complete records were not available and circumstances
prior to 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.

9.  On 13 August 1997, the commander of the Personnel Control Facility,
Headquarters and Law Enforcement Command forwarded the applicant's request
for discharge under provisions of chapter 10 of Army Regulation 635-200.
The commander stated that based on the applicant's previous record,
punishment would have minimal rehabilitative effect and discharge would be
in the best interest of all concerned.  He further stated that there did
not appear to be any mental defect at the time of the applicant's
misconduct.

10.  On 21 August 1997, 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 23 August 1997, he was
discharged with a characterization of service as under other than honorable
conditions after completing 1 year and 21 days of active service with 47
days of lost time due to AWOL.

11.  On 16 March 2001, the Army Discharge Review Board (ADRB) considered
the applicant’s request to upgrade his discharge.  The ADRB unanimously
determined that the discharge was proper and equitable and that the
discharge was properly characterized as under other than honorable
conditions.

12.  In support of his application, the applicant provided a self-authored
letter which stated that he had applied for a position as a police officer
and was experiencing difficulty due to the discharge he received when he
left Fort Knox.

13.  The applicant continued that he was a well-respected citizen and held
important positions in political campaigns and volunteer work for many
years.  He further stated that his military records show that he was
discharged due to serious marital problems as a result being married at a
young age.  The applicant further stated that his children were taken from
him during his assignment at Fort Hood and he had to go to New York to
attend family court.

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.

15.  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.

16.  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.

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 presumed 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 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 and
21 days of his 4-year obligation and that he had 47 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 had marital problems during his military
service.  However, there is no evidence that he sought assistance from his
chain of command.

8.  The ABCMR does not consider cases solely for the purpose of
establishing employment eligibility.

9.  The applicant's post service achievements and conduct are noteworthy.
However, good post service conduct alone is not a basis for upgrading a
discharge and does not mitigate his AWOL and indiscipline.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 September 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 September 2000.  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

__mhm___  __kah___  __lf____  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.



                                        Melvin H. Meyer
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004631                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050426                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19970923                                |
|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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