RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011132


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald Blakely                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |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 1986 discharge under other than
honorable conditions be expunged from his record and replaced with the
general discharge to which he is entitled.

2.  The applicant states he was a member of the Army National Guard until
1 May 1985 when he was discharged and received a general discharge
certificate.

3.  In September 1986 he was arrested in Maryville, Tennessee for a
contempt of court charge on a case which had been dismissed.  However, when
his attorney attempted to secure his release from confinement, he was told
that he was being held for the United States Army because he was considered
to be AWOL (absent without leave).  The applicant states that he was never
in the United States Army, he was in the Army National Guard.

4.  The applicant states he was transported to Fort Knox, Kentucky and
threatened with imprisonment and a court-martial, even though he had never
been a member of the military.  He states he was only able to secure his
release after being forced to sign papers admitting to his dishonorable
actions.

5.  The applicant states that he has been employed by the TVA (Tennessee
Valley Authority) and believes that the confusion over his status occurred
because of discrepancies in paperwork.  He states the less than honorable
discharge is affecting his employment and benefits status.

6.  The applicant provides a copy of his May 1985 general discharge from
the Army National Guard and documents associated with his administrative
discharge from the Army in 1986.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 October 1986.  The application submitted in this case
is dated
4 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.  Records available to the Board indicate the applicant enlisted in the
Army National Guard for a period of 6 years on 17 November 1982 under a
split training option.

4.  The applicant was ordered to active duty on 1 June 1983 to undergo
basic combat training.  He successfully completed that training on 4 August
1983 and was released from active duty and returned to his Army National
Guard unit.

5.  On 11 June 1984 the applicant was again ordered to active duty for the
purpose of undergoing advanced individual training as a field artilleryman
at Fort Sill, Oklahoma.  The applicant failed to report to active duty as
ordered and as such, was placed in an AWOL status on 11 June 1984.

6.  On 1 May 1985, under the provisions of National Guard Regulation 600-
200 and Army Regulation 135-178, the applicant was discharged from the Army
National Guard under honorable conditions and transferred to the United
States Army Reserve.  He was issued a general discharge certificate.  Other
than his separation order, documents associated with his 1985 discharge
from the Army National Guard were not in records available to the Board.

7.  National Guard Bureau Regulation 600-200 refers commanders to Army
Regulation 135-178 (Enlisted Separations) for the policies and procedures
of discharged members of the Army National Guard.  That regulation notes
that Soldiers may be discharged for unsatisfactory performance and may be
discharged under honorable conditions if warranted by his or her military
records.

8.  Army Regulation 135-178 states that an honorable characterization of
service is appropriate when the quality of the Soldier's service generally
has met the standards of acceptable conduct and performance of duty for
military personnel, or is otherwise so meritorious that any other
characterization would be clearly inappropriate.

9.  The applicant was returned to military control on 28 August 1986 and on

8 September 1986, after consulting with counsel, he submitted a voluntary
request for separation under the provisions of Chapter 10, Army Regulation
635-200 in lieu of trial by court-martial.  In his request he acknowledged
he understood the nature and consequences of the less than honorable
discharge which he might receive and that he understood he could be denied
some or all veterans' benefits as a result of his discharge and that he may
be deprived of rights and benefits as a veteran under both Federal and
State law.  There is no evidence he submitted any statement in his own
behalf.  He requested and was placed in an excess leave status on 8
September 1986 while his application for discharge was being processed.

10.  His request was approved and on 24 October 1986 the applicant was
discharged under other than honorable conditions.  His separation document
notes he was credited with 1 month and 26 days of active Federal service
just prior to his October 1986 discharge; 2 months and 4 days of active
Federal service from 1983 while undergoing basic combat training; and 1
year, 4 months, and 20 days of service in the Army National Guard.

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

DISCUSSION AND CONCLUSIONS:

1.  When the applicant was ordered to active duty for the purpose of
undergoing advanced individual training, as part of his enlistment
commitment to the Army National Guard, and then failed to report for that
training he was placed in an AWOL status.  While his subsequent discharge
from the Army National Guard in 1985, which was likely the result of his
failing to fulfill training requirements associated with his National Guard
enlistment contract, severed his ties with the National Guard it did not
entirely sever his ties with the military.  He was still carried in an AWOL
status for failing to report to active duty as so ordered in 1984.

2.  The fact that there is no indication the applicant submitted a
statement in his own behalf as part of his 1986 request for discharge in
lieu of trial by court-martial which might have explained his confusion
over his status supports a conclusion that the applicant did understand the
basis for his separation action.

3.  There is no evidence, and the applicant has not provided any, that his
discharge under other than honorable condition in 1986 was inappropriate or
not warranted considering the length of the applicant's AWOL period.  The
applicant has provided no evidence which would explain or excuse his
failure to report for active duty in June 1984 as ordered.  His lack of
understanding of the various components of the Army or the fact that his
less than honorable discharge may now be impacting on his civilian job
position is not sufficiently mitigating to grant the relief requested.

4.  In the absence of evidence to the contrary, it is presumed that the
applicant’s discharge under other than honorable conditions was
appropriate, and executed in accordance with appropriate laws and
regulations.

5.  In order to justify correction of a military record the applicant must
show, 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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 October 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
23 October 1989.  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

___RB   _  __LF____  __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.




                                  _____ Ronald Blakely_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011132                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050927                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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