RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 May 2005
      DOCKET NUMBER:  AR20040005642


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |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, that his under other than honorable
conditions (UOTHC) discharge be upgraded to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that his discharge should be upgraded
based on his overall record of service.  He states that he served in the
Army National Guard (ARNG) between 1973 and 1977.  He further states that
after his father became ill and could no longer support his family, he
requested a hardship discharge.  However, when the Army failed to act on
this request, he went absent without leave (AWOL) to support his family.
He further states that after being returned to military control, he was
given the option of being court-martialed, or requesting immediate
discharge, for the good of the service.  Because his only desire was to
return home to support his family, he accepted the discharge.  He states
that at the time, he did not fully comprehend the stigma that would follow
him throughout his life because of the discharge.  He further states that
his discharge is inequitable based on his honorable ARNG service, the
plight of his family, and because it has created severe undue hardship on
him.

3.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, Personnel Qualification Record (DA
Form 2-1), and Separation Packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 19 July 1979.  The application submitted in this case is
dated 10 August 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’s record shows that he served in the ARNG from 2 January
1974 through 22 September 1977.  He entered active duty to attend his
initial active duty for training (IADT) on 21 May 1974.
4.  On 20 September 1974, the applicant was honorably released from active
duty (REFRAD) and returned to his ARNG unit after completion 4 months of
active military service.  The DD Form 214 he was issued for this period of
service shows he was awarded military occupational specialty (MOS) 17K
(Ground Surveillance Radar Crewman) and earned the Marksman Qualification
Badge with Rifle Bar.

5.  The applicant enlisted in the Regular Army (RA) and entered active duty
on 11 October 1977.  His record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal a
disciplinary history that includes the applicant’s acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on 3 February 1978, for being AWOL
from 11 through
16 January 1978.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a
disposition form (DA Form 2496), dated 6 December 1977, Subject:  Request
for Relief.  This document is a request to relieve the applicant from field
artillery training due his lack of application.  The paragraph justifying
the action states that the applicant had personal problems that seemed to
be too much for him to handle.  It further stated that since he returned
from emergency leave, he had not applied himself to his work, and that he
had initiated action for a hardship discharge, but would not apply himself
while awaiting the results.  It further indicated the applicant indicated
he did not want a 13 MOS and only wanted discharge.  The MPRJ does not
contain a packet containing the facts and circumstances surrounding the
processing of the applicant’s request for a hardship discharge.

7.  On 28 February 1978, the applicant again departed AWOL from his unit.
He remained award for 472 days until being returned to military control at
Fort Sill, Oklahoma on 14 June 1979.

8.  On 23 June 1979, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 85 of the
UCMJ by being AWOL from on or about 28 February 1978 through on or about 15
June 1979.

9.  On 26 June 1979, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
effects of an UOTHC discharge, and of the rights 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.
10.  In his request for discharge, he acknowledged that he was guilty of
the charge against him or of a lesser included offense therein contained
which also authorizes the imposition of a bad conduct or dishonorable
discharge.  He further stated that under no circumstances did he desire
further rehabilitation, for he had no desire to perform further military
service.  He also stated his understanding 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.  He further
indicated that he understood that he could encounter substantial prejudice
in civilian life by reason of an UOTHC discharge.

11.  On 12 July 1979, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
19 July 1979, the applicant was discharged accordingly.  The separation
document
(DD Form 214) he was issued confirms he completed 5 months and 29 days of
creditable active military service and accrued 472 days of time lost due to
AWOL during the period covered by the DD Form 214.

12.  On 12 June 1986, the applicant submitted an application to the Army
Discharge Review Board (ADRB) requesting an upgrade of his discharge.  In
the statement he submitted with this application, he stated, in effect,
that the primary reason for his going AWOL was his inability and fear of
serving with “Black” Soldiers.  He stated that he used his martial problems
and his father’s illness as excuses to go AWOL to remove himself from this
situation.

13.  On 5 December 1986, after a through and comprehensive review of the
applicant’s case, the ADRB concluded his discharge was proper and
equitable, and it voted to deny his request for an upgrade of his
discharge.

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 UOTHC is normally considered appropriate for members separated
for this reason.

15.  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 Board 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 contention that his discharge is inequitable because of
his honorable ARNG service, the personal problems he was experiencing at
the time and because it continues to impose severe undue hardship on him,
and the supporting documents he submitted were carefully considered.
However, these factors are not sufficiently mitigating to warrant an
upgrade of his discharge at this late date.

2.  The evidence of record confirms that the applicant 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.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process.  Further, even
considering his ARNG service, the applicant’s UOTHC discharge accurately
reflects his overall record of short and undistinguished military service.

3.  The evidence also shows that the applicant was experiencing personal
problems related to his father’s illness.  However, it is also clear he had
issues related to serving with “Black” Soldiers, which was the primary
reason for his going AWOL, as he admitted in his statement to the ADRB in
1986.  Further, although he may have submitted a request for a hardship
discharge, it is evident he lacked the willingness to allow the time
necessary for an official resolution of this request, as evidenced by his
going AWOL shortly after making the request.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 5 December 1986.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 4 December 1989.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___FE __  ___LDS__  ___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.




            ____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005632                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/12                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1979/07/19                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|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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