RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         24 May 2005
      DOCKET NUMBER:  AR20040006455


      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. Betty A. Snow                 |     |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, an upgrade of his under other then
honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states, in effect, that he was having family problems and
felt the only way to resolve them was to go home.  He went home on leave
and stayed beyond the termination date of his leave.  He also states that
his service up to that point was honorable.

3.  The applicant provides a copy of his United States of America
Certification of Military Service (NA Form 13038) and his separation
document (DD Form 214) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 July 1980.  The application submitted in this case is
dated
4 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 records show that he enlisted in the Army and entered
active duty on 26 April 1977.  He completed basic combat training and
advanced individual training (AIT) at Fort Gordon, Georgia.  Upon
completion of AIT, he was awarded military occupational specialty (MOS)
05C10 (Radio Teletype Operator), and the highest rank he held while serving
on active duty was specialist four (SP4).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on two separate occasions.

5.  On 12 December 1977, the applicant accepted NJP for possession of
marihuana.  His punishment for this offense included a reduction to
private/E-1 (PV1) and a forfeiture of $150.00 per month for two months.

6.  On 11 May 1979, the applicant accepted NJP for being absent from his
appointed place of duty.  His punishment for this offense included seven
days extra duty and seven days restriction.

7.  On 4 February 1980, the applicant departed absent without leave (AWOL)
from his unit at Fort Polk, Louisiana.  He was dropped from the rolls of
the organization on 4 March 1980.  He remained AWOL for 113 days until
returning to military control at Fort Polk, Louisiana on 27 May 1980.

8.  On 9 June 1980, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
UCMJ by being AWOL from on or about 4 February 1980 through on or about 27
May 1980.

9.  On 10 Jun 1980, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights that were
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, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood 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.

11.  On 24 June 1980, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
17 July 1980, the applicant was discharged accordingly.

12.  The DD 214 he was issued upon his discharge confirms he completed a
total of 2 years, 6 months and 4 days of creditable active duty service and
that he had accrued 113 days of time lost due to AWOL.

13.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statue of limitations.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his UOTHC should be upgraded because
personal problems led him to go AWOL and because his service up to that
point was honorable were carefully considered.  However, these factors are
not sufficiently mitigating to warrant an upgrade of his discharge at this
time.

2.  The evidence of record confirms 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 and his discharge
accurately reflects his overall record of short and undistinguished
service.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 July 1980.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
16 July 1983.  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
timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MVT_  ___JTM__  ___LGH_  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.




                                  _____Margaret V. Thompson___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006455                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/05/24                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/07/17                              |
|DISCHARGE AUTHORITY     |AR 645-200, Ch 10 . . . . .             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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