RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 August 2005
      DOCKET NUMBER:  AR20040010881


      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. Jessie B. Strickland          |     |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 under other than honorable
conditions be upgraded to a general discharge.

2.  The applicant states that he would like his discharge under other than
honorable conditions upgraded to a general discharge because he was
experiencing marital problems at the time and had not had a problem in the
military prior to that time.  He goes on to state that given his length of
service and the fact that he made one mistake, he should have received a
better discharge.

3.  The applicant provides copies of his two reports of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 March 1978.  The application submitted in this case is dated
16 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 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.  He enlisted in the Regular Army in Charlotte, North Carolina, on 28
February 1973 for a period of 3 years and assignment to the 82nd Airborne
Division.  He completed his basic combat training at Fort Jackson, South
Carolina, his advanced individual training at Fort Sill, Oklahoma, and his
airborne training at Fort Benning, Georgia, before being transferred to
Fort Bragg, North Carolina, for assignment to the 82nd Airborne Division
for duty as a cannoneer.

4.  He was advanced to the pay grade of E-4 on 1 April 1974 and on
12 December 1974, he was honorably discharged for the purpose of immediate
reenlistment.  He had served 1 year, 9 months and 15 days of total active
service.

5.  He reenlisted on 13 December 1974 for a period of 5 years, assignment
to Fort Bragg, and a selective reenlistment bonus (SRB).  He also indicated
that he was married and had a 4-month old child.

6.  On 30 July 1975, nonjudicial punishment was imposed against him for
speeding on Fort Bragg.  His punishment consisted of a forfeiture of
$25.00.

7.  On 20 March 1977, he was transferred to Korea for assignment to an
artillery unit in the 2nd Infantry Division located at Camp Stanley.

8.  He departed Korea on ordinary leave on 18 July 1977 with a scheduled
return date of 21 August 1977.  He failed to return as scheduled and was
reported as being absent without leave (AWOL) effective 22 August 1977.  He
remained absent in a deserter status until he returned to military control
at Fort Bragg on 31 January 1978, where charges were preferred against him
for the AWOL offense.

9.  The facts and circumstances surrounding his administrative discharge
are not present in the available records because they were provided to the
Department of Veterans Affairs (VA) in Winston Salem, North Carolina, on 21
April 1983.  However, his records do contain a duly constituted report of
separation (DD Form 214) which shows that he was discharged under other
than honorable conditions on 7 March 1978, under the provisions of Army
Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had
served 2 years, 9 months and 16 days of active service during his current
enlistment for a total of 4 years and 7 months of total active service.  He
had 159 days of lost time due to AWOL.

10.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant's administrative separation was accomplished in compliance
with applicable regulations with no indication of procedural errors which
would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
overall record of undistinguished service and the length and nature of his
unauthorized absence.

4.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

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 7 March 1978; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 March 1981.  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 statute of limitations for timely filing or for
correction of the records of the individual concerned.



                                  Kathleen A. Newman
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040010881                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1978/03/07                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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