RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         4 August 2005
      DOCKET NUMBER:  AR20040010855


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. 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, 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, that while stationed at Fort Hood,
Texas, he was married and had a son, and was given a 30 day leave after he
received orders assigning him to Korea.  He claims that his family was to
accompany him on the assignment; however, prior to leaving for Korea his
wife left and took his son with her.  He claims he did not know where his
wife had gone, or why she left, and he became frantic.  He further states
he became an emotional mess, and the 30 days of leave turned into more days
than he can remember.  He also indicates he became mentally and emotionally
unstable due to this situation and this impaired his ability to serve.  Due
to this situation, he believes his discharge should be upgraded to a GD in
order to allow him to salvage some of his military benefits.  He concludes
by indicating that prior to his marital difficulties, his military service
was without incident.

3.  The applicant provides a self-authored statement 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 or injustice
which occurred on 18 January 1982.  The application submitted in this case
is dated
23 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 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 record shows that he enlisted in the Regular Army and
entered active duty on 15 May 1979.  He was trained in, awarded and served
in military occupational specialty (MOS) 63B10 (Power Generation and Wheel
Vehicle Mechanic).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishments (NJP) under the provision of Article 15 of the Uniform Code of
Military Justice (UCMJ) on two separate occasions.

5.  On 18 July 1979, the applicant accepted NJP for being AWOL from on or
about 9 through on or about 13 July 1979.  His punishment for this offense
included forfeiture of $79.00 and seven days confinement.

6.  On 10 August 1979, the applicant accepted NJP for leaving his appointed
place of duty without authority.  His punishment for this offense included
forfeiture of $75.00 and seven days restriction and extra duty.

7.  On 10 August 1981, a Charge Sheet (DD Form 458) was prepared preferring
a court-martial charge against the applicant for violating Article 86 of
the UCMJ by being AWOL from on or about 7 April 1981 through on or about 29
July 1981.

8.  On 11 August 1981, the applicant consulted with legal counsel and 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 receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

9.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could 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.

10.  On 18 August 1981, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge. On
18 January 1982, the applicant was discharged accordingly.  The DD 214 he
was issued confirms he completed a total of 2 years, 4 months and 9 days of
creditable active military service and that he accrued 117 days of time
lost due to AWOL.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 5-year
statue of limitations.

12.  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 trail by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded
because the mental and emotional instability he suffered as a result of
marital problems impaired his ability to serve was carefully considered.
However, this factor, while unfortunate, is not sufficient mitigation to
warrant an upgrade of his discharge.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, he voluntarily requested
discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met, the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his overall record of service.

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 error or
injustice now under consideration on 18 January 1982.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 17 January 1985.  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

___JEA _  ___RTD _  ___LMD_  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 E. Anderholm __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010855                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-08-04                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1982/07/18                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 10. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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