RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           24 May 2005
      DOCKET NUMBER:  AR20040005897


      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:

|     |Ms. Margaret V. Thompson          |     |Chairperson          |
|     |Mr. John T. Meixell               |     |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, in effect, that his under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he requests his discharge be
upgraded based on his overall record of service and his post service
conduct and accomplishments.  He claims that he requested a hardship
discharge in February 1985 because his mother was seriously ill at the
time, and because he was trying to obtain full custody of his two oldest
daughters.  However, he was required to return to Germany, where he was
having problems with a supervisor.  He claims that achievements in the Army
were highlighted when he was promoted to sergeant in 1982.

3.  The applicant also states that he is now a teacher and after school, he
volunteers as a coach of youth sports and will soon begin work on his
master’s degree.  Finally, he states that after years of reflection on why
he went absent without leave (AWOL), he knows he would never do it again.
However, the personal problems he had impaired his ability to serve.

4.  The applicant provides the following documents in support of his
application:  Self-Authored Statement, Resume, 4 Character Reference
Letters, Education Completion Certificates/Diplomas, and Army Achievement
Certificates.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 8 July 1985.  The application submitted in this case is
dated
2 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 enlisted in the Regular Army and
entered active duty on 30 July 1980.  He was trained in, awarded and served
in military occupational specialty (MOS) 94B (Food Service Specialist).
4.  The applicant’s record further shows that he attained the rank of
specialist five (SP5) on 1 July 1984, and that this is the highest rank he
attained while serving on active duty.  The record also shows he was
reduced to private/E-1 (PV1) on
6 June 1985.  His record contains no orders, or other documents that
contain the authority for his reduction.

5.  The applicant’s record also shows that he completed an overseas tour of
duty in Germany and earned the following awards during his active duty
tenure:  Army Service Ribbon, Army Good Conduct Medal, Overseas Service
Ribbon, Noncommissioned Officer Professional Development Ribbon, and
Marksman Qualification Badge with Rifle and Hand Grenade Bars.   The record
reveals no disciplinary infractions prior to the incident that resulted in
his discharge.

6.  The applicant’s Military Personnel Records Jacket (MPRJ) does not
include a separation packet containing the facts and circumstances
surrounding the applicant’s separation processing.  It does contain a Case
Report and Directive completed by the Army Discharge Review Board (ADRB)
during its review of the applicant’s case on 12 August 1988.

7.  The ADRB case report on file indicates that on 29 May 1985, a court-
martial charge was preferred against the applicant for being AWOL from 19
April through
19 May 1985.  It also shows that on 30 May 1985, the applicant consulted
with legal counsel and was advised of the basis for the contemplated court-
martial and the effects of an UOTHC discharge.  Subsequent to this
counseling, the applicant voluntarily requested discharge in lieu of trial
by court-martial.  It further shows that on 10 June 1985, the separation
authority approved the applicant’s discharge request and directed that he
receive an UOTHC discharge.  On 8 July 1985, the applicant was discharged
accordingly.

8.  The separation document (DD Form 214) the applicant was issued at the
time of his discharge confirms he completed a total of 4 years, 10 months
and 8 day of creditable active military service and that he had accrued 40
days of time lost due to AWOL.

9.  On 12 August 1988, after a thorough and complete review of the
applicant’s case, the ADRB concluded his discharge was proper and
equitable, and it voted not to change either the characterization of, or
reason for his discharge.

10.  The applicant provides four character references from co-workers, a
landlord and a supervisor.  These individuals all attest to his good
character, to his  outstanding post service conduct, and to his
accomplishments in and contributions to his community.

11.  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
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.
Although a discharge UOTHC is normally considered appropriate, an
honorable, or general, under honorable conditions  discharge is authorized.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his overall record of service and post
service conduct support an upgrade of his discharge, and the supporting
documents he submitted were carefully considered.  The applicant’s record
reveals no disciplinary history during the four years of active duty
service he completed prior to the incident that led to his discharge.

2.  The applicant’s misconduct clearly diminished the quality of his
service below that warranting a fully honorable discharge.  However, it is
clear the AWOL incident that led to his discharge was the only disciplinary
infraction he committed in his over four years of active duty service.
Further, the personal problems he was experiencing at the time impaired his
ability to serve and are a significant mitigating factor for his
misconduct.

3.  The evidence of record confirms the preponderance of the applicant’s
active duty service was honorable, as evidenced by his receiving the Army
Good Conduct Medal.  The fact that the misconduct that led to his discharge
was an isolated incident, coupled with his admirable post service conduct
and accomplishments, clearly support an upgrade of his discharge to
general, under honorable conditions, in the interest of equity.

4.  The applicant’s record confirms he was reduced to PV1 on 6 June 1985.
However, the record does not contain information regarding the authority
for this reduction.  Given the reduction date does not coincide with the
separation date, absent a specific document from the separation authority
confirming that the reduction was the result of his UOTHC discharge, there
is an insufficient evidentiary basis to support restoration of his rank to
SP5 based on upgrading his discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___MVT _  ___JTM _  ___LGH_  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing that he
received a general, under honorable conditions discharge on 8 July 1985, in
lieu of the UOTHC discharge of the same date he now holds; and by providing
him a new separation document that reflects this change.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading his discharge to fully honorable and restoration of his rank of
SP5.




            ____Margaret V. Thompson___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005897                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/24                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1985/07/08                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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