RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          1 September 2005
      DOCKET NUMBER:  AR20040011136


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 an honorable discharge.

2.  The applicant states that he was told by his recruiter before he
enlisted that he would not have to go overseas because he had a family.
However, after spending 18 months at Fort Hood, Texas, he was sent to
Germany for the remainder of his time.  He goes on to state that he could
not take his family to Germany so he moved them to Pennsylvania because his
wife could not drive and she had no family in Texas.  He goes on to state
that his wife had difficulty getting the kids to the doctor and going to
the grocery store and he requested a reassignment back to the United
States.  However, his request was disapproved and he requested and received
a 15 day leave to go back to the United States.  He also states that he
stayed in the United States to take care of his family because he did not
want to lose them.  He continues by stating that he could understand the
discharge he received if there was a war going on but it was peace time and
he needed to take care of his family.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 January 1983.  The application submitted in this case is
dated 9 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 18 March 1960 and enlisted in Harrisburg, Pennsylvania,
on 9 September 1980 for a period of 3 years, training as an infantryman and
assignment to the 1st Cavalry Division.  He was married and had three
dependents at the time of his enlistment.

4.  He successfully completed his one-station unit training (OSUT) at Fort
Benning, Georgia, and was transferred to Fort Hood, Texas, on 9 January
1981, for assignment to the 1st Cavalry Division.  He was advanced to the
pay grade of E-3 on 1 July 1981.

5.  On 10 August 1981, nonjudicial punishment (NJP) was imposed against him
for failure to go to his place of duty.  His punishment consisted of a
reduction to the pay grade of E-2 and a forfeiture of pay (both suspended
until 9 October 1981, extra duty and restriction for 7 days.  The applicant
was transferred to another unit in the Division on 26 October 1981.

6.  On 4 December 1981, NJP was imposed against him for being absent
without leave (AWOL) from 11 November to 23 November 1981.  His punishment
consisted of a reduction to the pay grade of E-2 (suspended until 3 March
1982) and a forfeiture of pay.

7.  On 16 August 1982, the applicant departed on ordinary leave and on
7 September 1982, he had failed to return from leave and was reported as
being AWOL.  He was dropped from the rolls of the Army in desertion on 7
October 1982.

8.  On 28 December 1982, he surrendered to military authorities at Fort
Dix, New Jersey, where charges were preferred against him for the AWOL
offense.

9.  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 declined the opportunity to submit
a statement or explanation in his own behalf.  He also declined a physical
examination and indicated that he did not desire to remain in the service
because he could not support his wife and three children on Army pay.

10.  The appropriate authority (a major general) approved the request on
6 January 1983 and directed that he be discharged under other than
honorable conditions.  Accordingly, he was discharged under other than
honorable conditions on 25 January 1983, under the provisions of Army
Regulation        635-200, chapter 10, in lieu of trial by court-martial.
He had served 2 years and 14 days of total active service and had 124 days
of lost time due to AWOL.

11.  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.

12.  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 and repeated misconduct.  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.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 January 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 January 1986.  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

__sk____  __bje___  __rtd___  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.



                                  Stanley Kelley
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011136                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19830125                                |
|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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