RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 July 2005
      DOCKET NUMBER:  AR20040008295


      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. Richard P. Nelson             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 upgrade of his under other than honorable
conditions discharge to fully honorable.

2.  The applicant states that his wife deserted him and his son.  He
returned from Korea and took his son to Fort Stewart, Georgia.  He
“couldn’t put him (son) in the hands of strangers.”  He came home and did
not return to military control for over 3 years.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), dated 1 December 1983.  In
addition, he provides a copy of another DD Form 214, dated 22 June 1973,
from the United States Marine Corps (USMC) and a hand-written statement
stating that he was honorably discharge from the Marines during the Vietnam
era.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 1 December 1983.  The application submitted in this case is
dated 20 August 2004 and was received by the Board on 12 October 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 limitation 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 military records show that he enlisted in the Regular
Army on 26 April 1977 for a period of 4 years.  He was trained in Military
Occupational Specialty 45N10 (Tank Turret Mechanic).  He was assigned to
Fort Stewart, Georgia and later Korea, returning to Fort Stewart on 13
January 1980.

4.  The applicant went Absent Without Leave (AWOL) on 19 March 1980 and was
dropped from the roles (DFR) as a deserter on 20 April 1980.  He
surrendered to military authorities on 5 October 1983, having been absent
for a total of 1,292 days.

5.  On 6 October 1983, court-martial charges were preferred against the
applicant for violation of Article 86 of the Uniform Code of Military
Justice for absenting himself, without authority, on or about 19 March
1980, from his organization, and remaining so absent until on or about 5
October 1983.

6.  On 12 October 1983, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  He 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 Certificate; 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 discharge.
Additionally, he elected to not submit a statement in his own behalf.

7.  The commander personally interviewed the applicant and stated that the
applicant’s absence was due to marital and personal problems. Further, the
commander indicated that the applicant had been given time to take care of
his problems and had discussed a hardship discharge but that the applicant
never completed the paperwork for a hardship discharge.  Rather, the
applicant left to raise his son and did not return until some more than 3
years later.  The commander recommended that the applicant’s request for
discharge be approved and that he be discharged under other than honorable
conditions.

8.  On 8 November 1983, the separation authority approved the applicant’s
request for discharge and directed that he be discharged for the good of
the service under other than honorable conditions and furnished an Under
Other Than Honorable Conditions Discharge Certificate (DD Form 794A).

9.  Accordingly, the applicant was discharged under other than honorable
conditions on 1 December 1983 under the provisions of AR 635-200, chapter
10, for the good of the service in lieu of court-martial.

10.  There is no indication in the available records to show that the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

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 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.

12.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  A review of the applicant’s record of service shows the applicant did
not meet the standards of acceptable conduct and performance of duty for
Army personnel.  The applicant’s entire record of service was considered.
There is no record or documentary evidence of acts of valor, achievement,
or service that would warrant special recognition.

2.  The applicant voluntarily requested separation from the Army to avoid
trial by court-martial.  In doing so, he admitted guilt to the stipulated
offense.  Additionally, the applicant requested a discharge to avoid the
possibility of a punitive discharge and having a felony conviction on his
records.  There is no indication that the request was made under coercion
or duress.

3.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

4. Considering all the facts of the case, the type of discharge directed
and the reasons for separation were appropriate.

5.  The applicant’s contention that he left to raise his son has been
considered.  While it is regrettable that the applicant encountered such
personal hardships, the record shows that he was afforded other avenues and
assistance in dealing with them.  He was offered the opportunity to request
a hardship discharge but elected to go AWOL, and later to desert, from the
Army.

6.  In order to justify correction of a military record the applicant must
show 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.
7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 December 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 November 1986.  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

___bkk __  ___ji____  ____rjo__  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.




            ________John Infante______________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008295                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050721                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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