RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           16 August 2005
      DOCKET NUMBER:  AR20040010550


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, his discharge was improper.  He claims
his unit commander gave two other Soldiers and himself one week off from
duty because they had previously taken on details and other duties to help
unit proficiency.  He and the other Soldiers were assigned these tasks in
order to avoid pulling mission essential and/or critical personnel away
from their assigned missions to perform the details.  He indicates the unit
commander gave them a verbal authorization for leave, but there was no
paperwork to back it up.  He also claims that while he and the other
Soldiers were on leave, a change of command took place, which brought in a
new commander.  He further claims the outgoing unit commander did not
inform the incoming unit commander of this agreement, and the new unit
commander failed to investigate the issue.  As a result, he was classified
as absent without leave (AWOL).  He further claims the new unit commander
insisted they attend some form of retraining as punishment, and they
refused.  He also claims that he was given an option to request a chapter
10 discharge from the Army, which he accepted, and was informed that an
UOTHC discharge would have no affect on him after his separation.

3.  The applicant provides a self-authored statement, three character
references, 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 that
occurred on
13 April 1981.  The application submitted in this case was received on
24 December 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 military personnel records show he enlisted in the
Regular Army and entered active duty on 21 November 1978.  He completed
basic combat training and advanced individual training (AIT) at Fort Sill,
Oklahoma.  Upon completion of AIT, he was awarded military occupational
specialty (MOS) 13B (Cannon Crewman) and was reassigned to Germany.

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) confirms,
in Item 18 (Appointments & Reductions), that he was advanced to the rank of
private/E-2 on 21 May 1979, and reduced to private/E-1 on 24 August 1979.
It also shows that he was advanced to the rank of private first class/E-3
(PFC) on 6 February 1980, and that this was the highest rank he attained
while serving on active duty. His records also show that he was reduced to
the rank of private/E-1 (PV1) on 18 December 1980, and this was the grade
that he held at the time of his discharge.

5.  Item 9 (Awards and Decorations) of the applicant’s DA Form 2-1 shows he
received no awards during his active duty tenure.  Item 21 (Time Lost Under
Section 972, Title 10, United States Code) shows he accrued 33 days of time
lost during the following two separate periods of AWOL:  11 August through
15 August 1979 and 23 June through 22 July 1980.

6.  The applicant’s record reveals a disciplinary history that includes his
acceptance of non-judicial punishment (NJP) under the provisions of Article
15 of the UCMJ on the following two separate occasions for the offense(s)
indicated:  17 May 1979, for being AWOL and for disobeying a lawful order;
and 5 June 1979, for disobeying lawful orders.

7.  The applicant’s Military Personnel Records Jacket (MPRJ) contains a Bar
to Reenlistment Certificate (DA Form 4126-R), dated 17 March 1979.  This
document lists additional disciplinary infractions on the part of the
applicant that include, failing to report for physical training, for guard
mount, and for guard duty and failing to report for extra duty that was
prescribed through NJP action.

8.  A court-martial charge was preferred against the applicant and he
consulted legal counsel on 11 March 1981.  He 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
this counseling, the applicant voluntarily requested discharge for the good
of the service, in lieu of trial by court-martial.  Although the Charge
Sheet (DD Form 458) was not available for review in this case, the Board
presumes administrative regularity.

9.  In his request for discharge, the applicant acknowledged his
understanding that he would 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.  He also
indicated that he understood he could face substantial prejudice in
civilian life because of his UOTHC discharge.

10.  On 26 March 1981, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge under
the provisions of chapter 10, Army Regulation 635-200.

11.  On 13 April 1981, the applicant was separated with an UOTHC discharge.
 The DD Form 214 he was issued confirms that he had completed a total of
2 years, 4 months, and 23 days of creditable active military service.  It
also shows he earned no awards or decorations during his active duty
tenure.

12.  The third-party supporting statements provided by the applicant
support his request based on his good character and post service conduct.

13.  There is no evidence of record showing the applicant petitioned the
Army Discharge Review Board (ADRB) for an upgrade of his discharge within
the ADRB’s 15-year statute 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 the UOTHC discharge was improper
because his new unit commander was not properly informed that he was on
authorized leave instead of being AWOL, and because he was never informed
of the effects of an UOTHC discharge were carefully considered.  However,
there is insufficient evidence to support these claims.

2.  By his own admission, the applicant disobeyed the order of his unit
commander to attend retraining.  Further, the record shows he was fully
advised of the substantial prejudice he could face in civilian life because
of his UOTHC discharge by legal counsel prior to his making the request to
be discharged for the good of the service, in lieu of trial by court-
martial.

3.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge and after consulting with defense counsel, he voluntarily
requested discharge from the Army in lieu of trial by court-martial.  His
separation processing was accomplished in accordance with the applicable
regulation.

4.  All requirements of law and regulation were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant’s discharge accurately reflects his overall record of
undistinguished service.  As a result, an upgrade to his discharge would
not be appropriate.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 April 1981.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 12 April 1984.  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

___MHM_  __JTM __  ___JBG _  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.




            ____Melvin H. Meyer____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |A20040010550                            |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/08/16                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1984/04/13                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In lieu of trial by Court Martial       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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