RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011547


      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. James Hise                    |     |Chairperson          |
|     |Mr. Thomas O’Shaughnessy          |     |Member               |
|     |Mr. Patrick McGann                |     |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 records be corrected by upgrading his
discharge.

2.  The applicant states that he wants a clean discharge, so in the event
of his death he can have military burial entitlements.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
2 April 1982.  The application submitted in this case is dated 13 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.  On 8 August 1978, the applicant enlisted in the Regular Army for a
period of
4 years.  He successfully completed basic combat training at Fort Leonard
Wood Missouri, and advanced individual training at Fort Benning, Georgia.
He served in Korea from June 1980 to July 1981.

4.  Between February 1980 and October 1980, the applicant was counseled on
numerous occasions for poor appearance and military bearing, pass
violations, ignoring orders, not completing assigned details, and for
failing to pass the written drivers test.

5.  Between January 1981 and October 1981, he accepted six nonjudicial
punishments under the provisions of Article 15, Uniform Code of Military
Justice for failure to go to his appointed place of duty, derelict in the
performance of his duties by failing to secure his weapon, breaking
restriction, and for purchasing in excess of monthly dollar limitations
while serving in Korea.  His punishments included restriction, extra duty,
forfeitures of pay, and reductions.

6.  On 9 May 1982, his commander preferred court-martial charges against
him for being absent without leave (AWOL) from 24 February 1982 to 26
February 1982, disobeying a lawful order (3 specifications) and of being
disrespectful in language to a superior noncommissioned officer.

7.  On 15 March 1982, the applicant, after consulting with legal counsel,
voluntarily submitted a request for discharge under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service in lieu of
trial by court-martial.  He acknowledged that he was guilty of the charges
against him, and that he understood the effects of receiving a less than
honorable discharge.  Included with his request was a statement which
stated that he committed the offenses because his chain of command would
not approve any of his leave requests, and that he wanted to get out of the
Army rather than have a court conviction that could hurt him in civilian
life, and that he wanted to be discharge so that he did not further
disgrace himself and his fellow Soldiers.

8.  A mental status evaluation cleared the applicant for separation.

9.  On 23 March 1982, the appropriate separation authority approved his
discharge request, and directed his reduction to Private E-1, and the
issuance of an undesirable discharge.

10.  On 2 April 1982, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, under other than honorable conditions
discharge.  His DD Form 214 (Certificate of Release or Discharge from
Active Duty) indicates he had 3 years, 7 months and 25 days of active
service.

11.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.

12.  There is no evidence the applicant applied to the Army Discharge
Review Board to have his discharge upgraded.






DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, Chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  The type of discharge directed and the reasons therefore were
appropriate considering the facts of the case.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 April 1982; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
1 April 1985.  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

__JH____  __TO ___  ___PM __  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 Hise________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011547                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050920                                |
|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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