RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 August 2005
      DOCKET NUMBER:  AR20040010623


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 under other than honorable
conditions be upgraded to honorable.

2.  The applicant states that when he was discharged “they” gave him five
years in the Reserve and when he completed his Reserve obligation he was
told that his discharge would be changed to honorable.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 April 1979.  The application submitted in this case is dated
22 November 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 on 23 August 1977 for a period of 3 years.  He
successfully completed basic combat training.

4.  While in advanced individual training, the applicant went absent
without leave (AWOL) on 8 February 1978.  He was apprehended by civil
authorities on
15 March 1979 and returned to military control.  On 27 March 1979, charges
were preferred against the applicant for the AWOL period.

5.  On 28 March 1979, the applicant consulted with counsel and requested
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 might be discharged under conditions other than honorable and
furnished an Under Other Than Honorable Discharge Certificate; that he
might be ineligible for many or all benefits administered by the Veterans
Administration; that he would be deprived of many or all Army benefits; and
that he might be ineligible for many or all benefits as a veteran under
both Federal and State law.  He also acknowledged that he might expect to
encounter substantial prejudice in civilian life because of a discharge
under other than honorable conditions.  He elected not to submit a
statement on his own behalf.

6.  On 5 April 1979, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable
conditions on 12 April 1979 under the provisions of Army Regulation 635-
200, chapter 10, for the good of the service in lieu of court-martial.  He
had served 6 months and 13 days of total active service with 397 days of
lost time due to AWOL.

8.  There is no evidence in the applicant’s service personnel records which
shows that he served in the U.S. Army Reserve following his discharge on
12 April 1979.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

10.  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.

11.  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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

12.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.
13.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contention that
he served five years in the U.S. Army Reserve following his voluntary
request for discharge.

2.  A discharge upgrade is not automatic.

3.  The applicant’s record of service included 397 days of lost time.  As a
result, his record of service was not satisfactory and did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant a general or honorable discharge.

4.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his reasons for going AWOL and he failed to do so.

5.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 12 April 1979; therefore, the time for the
applicant to file a request for correction of any injustice expired on 11
April 1982.  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

JA_____  RD______  LD______  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.



            ___James Anderholm____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010623                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19790412                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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