RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 April 2004
      DOCKET NUMBER:   AR2004100391


      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. David S. Griffin              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Ms. Jennifer L. Prater            |     |Member               |
|     |Mr. Lawrence Foster               |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant makes no statements in support of his application.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on  
15 October 1982, the date of his separation.  The application submitted in
this case is dated 27 October 2003.

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.  The applicant enlisted on 21 March 1978 for a period of 3 years.  He
successfully completed basic combat and advanced individual training and
was awarded military occupational specialty 64C10 (Motor Transport
Operator).  The applicant was immediately reenlisted as a specialist
four/paygrade E-4 on  
29 October 1980 for a period of 3 years.

4.  On 31 May 1979, non-judicial punishment was imposed against the
applicant for failure to obey a lawful order and for being disorderly.  His
punishment consisted of forfeiture of $100 and extra duty for 14 days.

5.  On 5 March 1981, non-judicial punishment was imposed against the
applicant for disrespectful language toward his superior non-commissioned
officer.  His punishment consisted of reduction to private first class/pay
grade E-3.

6.  On 1 August 1981, the applicant was promoted to specialist four/ 
pay grade E-4.

7.  On 23 Dec 1981, non-judicial punishment was imposed against the
applicant for failure to pay a just debt.  His punishment consisted of
reduction to private first class/pay grade E-3 and forfeiture of $100 for
one month.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ)
shows that the portion of punishment that directs for forfeiture of $100
for one month was suspended for 90 days.

8.  On 16 April 1982, non-judicial punishment was imposed against the
applicant for failure to go at the time prescribed to his appointed place
of duty.  His punishment consisted of forfeiture of $150 per month for one
month, reduction to private/pay grade E-2, and restriction to Fort Stewart,
Georgia, for seven days.  The DA Form 2627 shows that the portion of the
punishment that directs reduction to private/pay grade E-2 was suspended
for 60 days.

9.  Records show the applicant was absent without leave (AWOL) from  
7 June 1982 through 21 June 1982.

10.  The records show the applicant was also AWOL from 21 June 1982 through

29 June 1982.

11.  On 30 June 1982, the applicant was AWOL again and was dropped from the
rolls effective 30 July 1982.  The applicant's records contain a DA Form
4187 (Personnel Action) showing the applicant surrendered to civilian
authorities and was returned to military control on 21 August 1982 at
United States Army Personnel Control Facility at Fort Knox, Kentucky.

12.  The applicant's records contain a DA Form 458 (Charge Sheet).  This
document charged the applicant with being absent without authority from on
or about 30 June 1982 until on or about 21 August 1982.

13.  The applicant's service medical records contain a statement signed in
his own hand on 24 August 1982.  This statement shows that he did not
desire to undergo a medical examination prior to separation.

14.  On 30 August 1982, the applicant consulted with legal counsel and
requested discharge for the good of the service in lieu of court-martial
under provisions of chapter 10, Army Regulation 635-200, (Personnel
Separations).

15.  The applicant signed his request for discharge showing that he was
making the request of his own free will and acknowledging that he was
guilty of the offenses with which he was charged.  He further acknowledged
that he was afforded the opportunity to speak with counsel prior to making
this request.  In his request, the applicant acknowledged that he was
advised he may be furnished an Under Other Than Honorable Discharge
Certificate; that he will be deprived of many or all Army benefits; that he
may be ineligible for many or all Veterans Administration benefits; and
that he may expect to encounter substantial prejudice in civilian life
because of an Under Other Than Honorable Discharge.

16.  On 10 September 1982, the Commanding Officer of the Special Processing
Company, USA Personnel Control Facility at Fort Knox, Kentucky, recommended
approval of the applicant's request for discharge.  He also recommended the
applicant be discharged under other than honorable conditions.  The
applicant's request was forwarded to the lieutenant in command of the USA
Personnel Control Facility at Fort Knox, Kentucky.

17.  On 10 September 1982, the commander of USA Personnel Control Facility
at Fort Knox recommended approval of the applicant's request for discharge
and recommended that the applicant be discharged under other than honorable
conditions.  The applicant's request was forwarded to the major general in
command of the U.S. Army Armor Center and Fort Knox.

18.  On 14 September 1982, the commander of the U.S. Army Armor Center and
Fort Knox approved the applicant's request for discharge for the good of
the service and directed the applicant be discharged under other than
honorable conditions.

19.  On 15 October 1982, the applicant was discharged from active duty and
was issued an Under Other Than Honorable Conditions Discharge Certificate
based on chapter 10, Army Regulation 635-200.

20.  Block 25 (Separation Authority) of the applicant's DD Form 214
contains the entry "Chap [Chapter] 10 AR [Army Regulation] 635-200."

21.  Block 28 (Narrative Reason for Separation) of the applicant's DD 214
contains the entry "Administrative Discharge Conduct Triable by Court-
Martial."

22.  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.

23.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

24.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requested that his discharge under other than honorable
conditions be upgraded to an honorable discharge.

2.  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.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

4.  The applicant’s record of service shows four non-judicial punishments
and  
73 days of lost time.  Therefore his quality of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 As a result, the applicant is not entitled to an honorable discharge.

5.  In view of the applicant's repeated offenses, his record of service is
not satisfactory.  Therefore, there is no basis to upgrade his discharge to
a discharge under honorable conditions.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 15 October 1982; therefore, the time for the
applicant to file a request for correction of any injustice expired on 14
October 1985.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

_TDH___  _LF_____  _JLP   ___  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.




              _Thomas D. Howard, Jr.__
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100391                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/04/20                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |