RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          18 August 2005
      DOCKET NUMBER:  AR20040010899


      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:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |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 he went absent without leave (AWOL) because
his wife was physically abusing his children and she was put in a mental
institution for child abuse.  He goes on to state that he wanted a general
discharge at the time because he thought a hardship discharge would take
longer.  He also states that he thinks he did the right thing at the time
under the circumstances and he now desires to work in the law enforcement
field.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 April 1979.  The application submitted in this case is dated
25 November 2004 and was received on 6 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 was born on 8 September 1952 and enlisted with a moral waiver in the
United States Army Reserve (USAR) in Cincinnati, Ohio, on 14 September
1978. He was married with a 3 year old child at the time he enlisted.  He
was ordered to initial active duty for training (IADT) on 29 September 1978
and was transferred to Fort Sill, Oklahoma, to undergo one-station unit
training (OSUT).

4.  On 10 October 1978, he was seen at the Community Mental Health Activity
for evaluation of a nervous condition.  He related several personal
problems and expressed a desire for either a pass or discharge.  He was
deemed to be manipulative and immature, that he threatened suicide and AWOL
and displayed “IWOA” (I want out of Army) Syndrome.  The examining
behavioral science official returned him to duty and contacted his unit.

5.  He went AWOL on 16 October 1978 and remained absent until he was
apprehended by civil authorities on 29 January 1979 and was returned to
military control at Fort Knox, Kentucky, where charges were preferred
against him for the AWOL offense.

6.  On 31 January 1979, he underwent a psychiatric evaluation and was
deemed to be mentally responsible, able to distinguish right from wrong and
to adhere to the right.  The examining official opined that he exhibited
signs of social/emotional adjustment to the military as evidenced by
difficulty with sleep, inability to concentrate for sustained periods of
time, paranoid ideations, difficulty adjusting to minimal stress, poor
attitude and lack of motivation.  He further opined that the prognosis for
minimal adjustment to the military was poor and that he should be
considered for discharge.

7.  On 6 February 1979, he again went AWOL and remained absent until he was
again apprehended by civil authorities in Cincinnati and was returned to
military control at Fort Knox, where additional charges were preferred
against him.  The applicant also updated his records and continued to show
that he was married with one child.

8.  On 2 March 1979, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he understood the charges
that had been preferred against him, that he was making the request of his
own free will, without coercion from anyone and that he was aware of the
implications attached to his request.  He also admitted that he was guilty
of the charges against him or of lesser included offenses which authorized
the imposition of a bad conduct or dishonorable discharge.  He acknowledged
that he understood that he could receive a discharge under other than
honorable conditions and that he might be deprived of all benefits as a
result of such a discharge.  He further elected to submit a statement or
explanation in his own behalf, whereas he asserted that he had joined the
USAR because he was unemployed, but he was ordered to active duty and he
wanted out of the Army because his wife needed him at home.  He went on to
state that his wife was not in the best of health, that his kid gave her a
hard time, that the Army was too much of a hassle for him, that he was
tired of it and that he was doing the Army a favor by wanting out.

9.  The appropriate authority approved the request on 9 March 1979 and
directed that he be discharged under other than honorable conditions.
Accordingly, he was discharged under other than honorable conditions on 5
April 1979, under the provisions of Army Regulation 635-200, chapter 10, in
lieu of trial by             court-martial.  He had served 1 month and 20
days of active service during his IADT and had 122 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.  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, the seriousness of his repeated
misconduct, and comparison of his explanation and attitude at the time of
his discharge.  His service simply does not rise to the level of a
discharge under honorable conditions.

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 5 April 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 April 1982.  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

__jev___  __rjw___  __rr____  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. Vick
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040010899                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1979/04/05                              |
|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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