RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 July 2005
      DOCKET NUMBER:  AR20040007996


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Stanley Kelley                |     |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 discharge under other than
honorable conditions be upgraded to honorable based on his post-service
actions and accomplishments since his discharge.

2.  The applicant states, in effect, that he believes all of his actions
and accomplishments during the years of ROTC and military service were
honorable up the point of his error in judgment which led to his
resignation.  He further states that all of his actions and accomplishments
since his discharge warrant reconsideration of his discharge and an upgrade
to honorable.

3.  The applicant provides:

      a.  a letter from a former battalion commander who he served under
for several months.  The former commander stated that the applicant always
conducted himself in a highly professional manner and that his honesty and
integrity were above reproach; and

      b.  10 personal references that attest that the applicant:

            1)  is a hard working, trustworthy, honest person and is of
good character;

            2)  displays exceptional high morals;

            3)  has proven to be an asset to his town and community and
belongs to two community service oriented organizations;

            4)  is highly desirous of working in the law enforcement
community; and

            5)  is currently working in a position of trust and is sincere
and dedicated in his attempt to improve his life.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 May 1983.  The application submitted in this case is
dated
13 September 2004.

2.   The applicant's request was previously considered by the Board and
denied base on the applicant's failure to timely file.  The Board has now
determined that the applicant's case should be considered on its merits as
a de novo review.

3.  The applicant was commissioned as a second lieutenant in the Army
Reserve on 9 August 1980 and ordered to active duty on 20 September 1980
for a period of 3 years.  The highest rank held by the applicant was first
lieutenant.

4.  On 19 January 1983, court-martial charges were preferred against the
applicant for willful disobedience of an order from his superior
commissioned officer, making a false official statement, and conduct
unbecoming an officer and a gentleman.

5.  On 3 March 1983, the charges were referred to general court-martial.

6.  On 11 April 1983, the applicant voluntarily submitted his request for
resignation from the Army for the good of the service under the provisions
of Chapter 5 of Army Regulation 635-120.  He indicated that he did not
desire to appear before a court-martial or a board of officers.  He
acknowledged that he was not subjected to coercion with respect to his
resignation and was advised of and fully understood the implications of his
action.

7.  He further acknowledged that he was afforded the opportunity to speak
with counsel prior to making this request.  The applicant acknowledged that
he was advised he may be furnished an Under Other Than Honorable Conditions
Discharge Certificate; that he would be deprived of many or all Army
benefits; that he may be ineligible for many or all Veterans Administration
benefits; and that he may expect to encounter substantial prejudice in
civilian life because of an under other than honorable conditions
discharge.

8.  On 18 May 1983, the Deputy Assistant Secretary (DA Review Boards and
Personnel Security) approved the applicant's resignation with a discharge
under other than honorable conditions.

9.  On 31 May 1983, the applicant was discharged under other than honorable
conditions under the provisions of Chapter 5 of Army Regulation 635-120,
conduct triable by court-martial.  He had served 2 years, 8 months, and 12
days of active service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 22 January 1990, the ADRB reviewed and denied
the applicant's request for upgrade.  The ADRB determined that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.



11.  Army Regulation 635-120 (Officer Resignations and Discharges)
implements the statutory provisions of Title 10 United States Code
governing officer separations and provides policies and procedures for
separating officer from active duty.  Chapter 5 of this regulation provides
that an officer may submit a resignation for the good of the service when
court-martial charges are preferred against the officer with a view toward
trial by general court-martial, the officer is under suspended sentence of
dismissal, or the officer elects to tender a resignation because of reasons
outlined in Army Regulation 635-100, paragraph 5-11a(7) (misconduct or
moral or professional dereliction) prior to charges being preferred and
prior to being recommended for elimination under the provisions of Army
Regulation 635-100.  The regulation provides that a resignation for the
good of the service, when approved at Headquarters Department of the Army,
is normally accepted as being under other than honorable conditions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable
conditions should be upgraded to honorable based on his post-service
actions and accomplishments since his discharge.

2.  Rather than facing the consequences of a trial by court-martial the
applicant submitted his resignation for the good of the service, in lieu of
trial by court-martial.  He had full knowledge of the consequences of this
act.  Although he may now believe that he made the wrong choice, he should
not be allowed to change his mind at this late date.

3.  The applicant's post service achievements and conduct are noted.
However, good post service conduct alone is not normally sufficient for
upgrading a properly issued discharge and the ABCMR does not upgrade
discharges based solely on the passage of time.

4.  The applicant’s voluntary request for separation under the provisions
of Army Chapter 5 of Army Regulation 635-120, for the good of the service
to avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

5.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

6.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS___  __SLP __  ___SK __  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.




                                      ____John N. Slone_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007996                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050712                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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