RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 September 2005
      DOCKET NUMBER:  AR20040010638


      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:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 an honorable discharge.

2.  The applicant states, in effect, that he was brought back from Germany
because his wife was experiencing problems with her pregnancy.  He further
states that he did not want to return to Germany due to his wife's
condition.

3.  The applicant provides a copy of:

      a.  his personal statement, dated 10 February 1984, in support of his
request for discharge for the good of the service in which he stated, in
effect, that:

            1)  he was absent without leave (AWOL) because his wife was
going through emotional stress, continued to "have anxiety attacks once in
awhile," and needed help in raising their new baby girl;

            2)  he tried to get a hardship discharge; and

            3)  he had a document that stated it would be for the good of
the Army and his family to be separated from the service.

      b.  his DD Form 214 (Certificate of Release or Discharge from Active
Duty) with a separation date of 5 March 1984; and

      c.  a letter, dated 12 April 1985, from the Department of Veterans
Affairs (DVA) that stated the applicant was entitled to all veterans
benefits based on his first period of service during the period from 2
November 1976 to 1 November 1980.  The letter further stated that the
applicant's discharge for the second period of service during the period
from 2 November 1980 to 5 March 1984 was issued under conditions which
constituted a bar to the payment of DVA benefits.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 March 1984, the date of his discharge.  The application submitted in this
case is dated 22 November 2004 and was received on 1 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 service records show that he enlisted on 2
November 1976 for a period of 4 years.  On 7 October 1980, the applicant
reenlisted for a period of 6 years.

4.  On 21 September 1982, the applicant was assigned to Company E of the
23rd Engineer Battalion in Germany.

5.  On 25 January 1983, the applicant was placed on emergency leave.

6.  On 3 February 1983, a message from Commander, 4th Infantry Division,
Fort Carson, Colorado stated that the applicant was attached to that
headquarters to apply for a compassionate reassignment.

7.  The record contains numerous letters in support of the applicant
receiving a hardship discharge.

8.  A copy of the applicant's request for compassionate reassignment and
any response to that request were not available for the Board to review.

9.  The applicant's records show that he departed AWOL on 19 March 1983 and
was dropped from the rolls on 17 April 1983.  Records show the applicant
was returned to military control on 8 February 1984.

10.  On 21 February 1984, the applicant was charged with being AWOL during
the period from 19 March 1983 to 8 February 1984.

11.  On 22 February 1984, the applicant voluntarily requested discharge for
the good of the service.  He acknowledged that he was making the request of
his own free will and acknowledged that he was guilty of the offense with
which he was charged.  He further acknowledged that he was afforded the
opportunity to speak with counsel prior to making this request.  In his
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.
12.  On 28 February 1984, the appropriate authority approved the
applicant's request for discharge for the good of the service, directed
that the applicant be reduced to private/pay grade E-1, and that he be
furnished an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 5 March 1984 the applicant was discharged under the provisions of
Chapter 10 of Army Regulation 635-200, for the good of the service.  He had
completed 3 years, 4 months and 29 days of active service and had 319 days
of time lost.

14.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 31 July 1986, 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.

15.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3-year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the administrative
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.
The request must include the Soldier's acknowledgement that the Soldier
understands the elements of the offense(s) charged and that the Soldier is
guilty of the charge(s) or of a lesser included offense therein contained
which also authorized the imposition of a punitive discharge.  A discharge
under other than honorable conditions is normally considered appropriate.

17.  Army Regulation 635-200 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.
 Whenever there is doubt, it is to be resolved in favor of the individual.

18.  Army Regulation 635-200 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable
conditions should be upgraded to an honorable discharge.

2.  The applicant contends that his wife was having problems with her
pregnancy.

3.  The evidence shows that the applicant was sent home on emergency leave
due to his wife's condition and that he had intentions of requesting a
compassionate reassignment.  However, there is no evidence of the request
having been submitted or the result of the request.

4.  The condition of the applicant's wife is not sufficiently mitigating to
justify a period of AWOL for 319 days.

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

6.  The applicant voluntarily requested discharge, admitted his guilt, and
acknowledged that he could receive an under other than honorable conditions
discharge.

7.  The ABCMR does not upgrade discharges based solely on the passage of
time.

8.  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.

9.  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.

10.  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.

11.  The applicant’s record of service shows 319 days of time lost.
Therefore his quality of service did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  As a result, the
applicant is not entitled to an honorable discharge.

12.  In view of the applicant's length of time lost, his record of service
is not satisfactory.  Therefore, there is no basis to upgrade his discharge
to a general discharge.

13.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

14.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 31 July 1986.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 30 July 1989.  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 file in this.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___rld___  ___jrm __  ___slp___  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.




                                  __________Shirley L. Powell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010638                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050913                                |
|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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