RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 SEPTEMBER 2005
      DOCKET NUMBER:  AR20040011720


      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, in effect, that his discharge be upgraded.

2.  The applicant states he was discharged because of a misunderstanding
and that he was not given a choice to complete his tour of duty like he was
supposed to have been given.  He also states that at the time it was not
explained to him how the discharge would affect him.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 May 1980.  The application submitted in this case is
dated
15 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
Kansas Army National Guard in January 1977 and successfully completed basic
and advanced individual training.

4.  On 12 December 1979, after numerous unexcused absences from his unit
training sessions he was involuntarily ordered to active duty as an
unsatisfactory participant.  He failed to report for duty and was placed in
an AWOL (absent without leave) status.  On 14 May 1980 he was apprehended
by civilian authorities and return to military control.

5.  When charges were preferred, the applicant consulted with counsel and
voluntarily requested discharge for the good of the service in lieu of
trial by court-martial.  His request acknowledged he understood the nature
and consequences of the undesirable discharge which he might receive.  He
indicated 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.  In his request for
separation he noted that he wanted out of the Army because he could not
adjust to the military.

6.  The applicant's request was approved and on 8 May 1980 the applicant
was discharged under other than honorable conditions.

7.  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.

8.  Army Regulation 635-200 states that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  It also notes that a general discharge, when authorized,
may be issued to a soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.

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

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contention, he was given a choice regarding
his future in the Army and chose to request a discharge rather than face
the consequences of a trial by court-martial.  Additionally, the applicant
acknowledged in his request that he did understand the consequences of the
discharge on his future and on his entitlement to veterans' benefits.

2.  The applicant's successful completion of training and initial service
with the Army National Guard is evidence that the applicant was capable of
honorable service.

3.  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.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
7 May 1983.  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                 |AR200411720                             |
|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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