RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2005
      DOCKET NUMBER:  AR20040004642


      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. Mark D. Manning               |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Paul M. Smith                 |     |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 he had family problems that caused him to go
absent without leave (AWOL).  He further states that his commander never
informed him that he had a right to counsel and that he never refused right
of counsel.

3.  The applicant provides three DD Forms 458 (Charge Sheet); a DD Form 214
(Certificate of Release or Discharge from Active Duty); a DA Form 2-1
(Personnel Qualification Record); copies of medical service records, a DD
Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United
States); and six copies of various assignment orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 December 1983.  The application submitted in this case is
dated 25 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 23 July 1980, he did not
completed basic training or advanced individual training.

4.  A DD Form 458 (Charge Sheet), dated 25 October 1983, shows charges were
preferred against the applicant for being absent without leave (AWOL) for
the periods 24 July 1980 through 1 August 1980, 2 August 1980 through
21 November 1980, and 26 November 1980 through 24 October 1983.

5.  On 26 October 1983, 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 Department of Veterans Affairs; 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.  The applicant did not submit a statement
on his behalf.

6.  On 29 November 1983, 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.  He directed that the applicant be
issued an "Under Other Than Honorable Conditions Discharge Certificate."

7.  On 29 December 1983, the applicant was discharged, with an under other
than honorable conditions discharge, by reason of "For the Good of the
Service - In Lieu of Court-Martial."  The applicant completed 2 months and
12 days of creditable active service with 1178 days of lost time due to
AWOL.

8.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 20 February 1986, the ADRB reviewed and denied
the applicant's request for upgrade.  The ADRB unanimously voted that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.

9.  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.

10.  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.




11.  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.  There is no evidence and the applicant has not provided evidence that
shows he sought assistance from his chain of command, chaplain, or
community support service for his family problem.  Therefore, there is no
basis for this argument.

2.  Records show that the applicant consulted with counsel, that he was
advised of his rights, and that he elected not to submit a statement in his
behalf.  His voluntary request for separation under the 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 conformance
with applicable regulations.

3.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and that the rights of the applicant were
fully protected throughout the separation process.  Therefore, it is
concluded that the applicant’s discharge was proper and equitable

4.  The applicant’s record of service includes 1178 days of lost time due
to AWOL.  Based on this record of indiscipline, 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 a general
discharge. As a result, his discharge accurately reflects his overall
record of service.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 20 February 1986, 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 19 February 1989.  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

_ MDM __  __ BJE__  __PMS__  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. Mark D. Manning_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040004642                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |8 March 2005                            |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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