RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 August 2005
      DOCKET NUMBER:  AR2240009723


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 that his discharge be upgraded.

2.  The applicant states that it is unjust for him to continue to suffer
the adverse consequences of a bad discharge, because his overall
performance was satisfactory and the basis for the discharge was an
isolated incident.  He was an excellent candidate for rehabilitation
because his ability to serve was impaired by concern for his mother who was
dying of cancer.  Although his mother has long since departed this blemish
is still on his record.

3.  The applicant provides no substantiating documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 October 1982.  The application submitted in this case is
dated 21 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 enlisted and entered active duty on 15 May 1981.  He
completed training as a unit supply specialist and was assigned to Fort
Bliss, Texas.

4.  He received nonjudicial punishments (NJPs) under Article 15, Uniform
Code of Military Justice on 1 January, 14 January, and 15 March 1982 for
absences from his place of duty.

5.  The applicant was absent without leave (AWOL) from 11 April to 31
August 1982.  When he voluntarily returned to military control at Fort
Monmouth, New Jersey, he wrote on a returnee interview form that he had
gone AWOL because he had been denied leave when his mother died.  However a
sergeant first class wrote that he had talked to the applicant's executive
officer who reported that the applicant's mother had been in the hospital
when the AWOL began.

6.  When charges were preferred against him for that offense, the applicant
consulted with counsel and voluntarily submitted a request for discharge
for the good of the service in lieu of trial by court-martial.  He
acknowledged that he had been advised of the implications of his request
and admitted that he was guilty as charged or guilty of a lesser included
offense for which a punitive discharge was also authorized.  He stated that
he did not desire rehabilitation under any circumstances.  He indicated
that he understood he might receive an under other than honorable
conditions (UOTHC) discharge  and thereby lose all veteran benefits under
state or Federal law and that he did not wish to submit any statement in
his own behalf.

7.  The applicant requested and was placed on voluntary appellate leave.
The separation authority approved the applicant's request, ordered a UOTHC
discharge and directed the applicant's reduction to pay grade E-1.  The
applicant was discharged on 6 October 1982.  He had 2 years, 10 months, and
6 days creditable service and 172 days lost time.

8.  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 an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

9.  The Table of Maximum Punishments in the Manual for Courts-Martial, both
in effect at the time of the discharge and currently, shows that a punitive
discharge is authorized for any AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no substantiating evidence to support his
contentions. Furthermore, he was not a good candidate for rehabilitation,
because he personally and specifically rejected that option.

2.  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.  There is no indication that the
request was made under coercion or duress and his service is appropriately
characterized by the AWOL offense.
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 injustice
now under consideration on 6 October 1982; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 5 October 1985. 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

__KAN __  __WDP _  __MJNT _  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 failure to timely file for correction of the records of
the individual concerned.






            _   Kathleen A. Newman____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040009723                           |
|SUFFIX                  |                                        |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19821006                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 10                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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