RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 April 2004
      DOCKET NUMBER:   AR2004100740


      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 upgrade of his discharge under other than
honorable conditions to a discharge under honorable conditions.

2.  The applicant states that he should have been granted a discharge under
honorable conditions.  He contends that he was absent without leave (AWOL)
only 80 days, that he had no other offenses, and that his marriage was
breaking up.  He further states that he went home to save his marriage.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice which occurred
on 17 December 1981, the date of his separation from the Army.  The
application submitted in this case is dated 22 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 11 July 1979 for a period of 3 years.  He
successfully completed basic combat and advanced individual training and
was awarded the military occupational specialty 68J10 (Helicopter Missile
Systems Repairer).  The applicant had been promoted to Specialist
Four/paygrade E-4.

4.  The applicant's records show he was AWOL on 2 September 1981 and
dropped from the rolls on 2 October 1981.  The applicant's records contain
a DA Form 4187 (Personnel Action) showing the applicant was apprehended by
civilian authorities and returned to military control on 15 October 1981.

5.  The applicant's records contain a DA Form 458 (Charge Sheet), dated  
26 October 1981, which informed the applicant that he was charged with
being absent without authority from on or about 2 September 1981 until on
or about 15 October 1981.

6.  The applicant's service medical record contains a statement, signed in
his own hand on 23 October 1981, which states that he did not desire to
undergo a medical examination prior to separation.

7.  The applicant's records contain a DA Form 3822-R (Report of Mental
Status Evaluation).  The evaluation, conducted on 28 October 1981, showed
the applicant's behavior to be normal, fully alert, and fully oriented.
The evaluation further showed the applicant's mood to be unremarkable and
his thinking process was clear with his thought content being normal.  The
evaluation concluded that the applicant had the mental capacity to
understand and participate in the proceedings against him and was mentally
responsible and met the retention requirements of Chapter 3, Army
Regulation 40-501(Standards of Medical Fitness).

8.  On 28 October 1981, 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 of Army Regulation 635-200, (Personnel
Separations).

9.  The applicant signed his request for discharge which showed that he was
making the request under his own free will; that he was afforded the
opportunity to speak with counsel; that he was advised that 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.

10.  On 9 November 1981, the Commanding Officer of the Special Processing
Company, USA Personnel Control Facility, Fort Knox, Kentucky, recommended
approval of the applicant's request for discharge.  He also recommended
that the applicant be discharged under other than honorable conditions.
The applicant's request was forwarded to the Commanding Officer of the USA
Personnel Control Facility Fort Knox, Kentucky.

11.  On 9 November 1981, the Commanding Officer of the USA Personnel
Control Facility 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
brigadier general in the position of acting commander of the U.S. Army
Armor Center and Fort Knox, Fort Knox, Kentucky.

12.  On 24 November 1981, the acting 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.

13.  On 17 December 1981, the applicant was discharged from active duty and
was issued an Under Other Than Honorable Conditions Discharge Certificate
based on Army Regulation 635-200, chapter 10.

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

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

16.  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.

17.  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.

18.  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 contends that his discharge should be upgraded because he
was AWOL only 80 days and that he had no other offenses.

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.  Evidence shows that the applicant was properly and equitably discharged
in accordance with regulations in effect at the time.



4.  Lacking evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
it is determined that the type of discharge and the reason for separation
were appropriate considering all the facts of the case.

5.  The applicant’s record of service shows he had 43 days of lost time.
As a result, his quality of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
the applicant is not entitled to an honorable discharge.

6.  After further review of the applicant's record of service, it is
evident that his quality of service was not satisfactory; therefore, he
does not warrant upgrade of his discharge from under other than honorable
conditions to a discharge under honorable conditions.

7.  The applicant contends that he went home in an AWOL status to save his
marriage.  However, there is no evidence he sought assistance from his
chain of command with his marital problems prior to going AWOL and did not
raise this issue during separation processing.  In view of these facts, the
applicant's alleged marital problems are not sufficient as a basis to
upgrade his discharge.

8.  Records show the applicant should have discovered the alleged injustice
now under consideration on 17 December 1981; therefore, the time for the
applicant to file a request for correction of any injustice expired on 16
December 1984.  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                 |AR2004100740                            |
|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.                      |                                        |