RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:               OCTOBER 14, 2004
      DOCKET NUMBER:       AR2004103076


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda Simmons                 |     |Member               |
|     |Mr. Richard 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 realizes that he made a very bad decision
when he went absent without leave (AWOL) during his days of military
service and that he regrets that he could not continue his time in the
military.  He states that since his discharge he has not been in trouble
with the law; that he is an active member of the Decantur Baptist Church;
that he is married with two children; and that he has received a college
degree.  He goes on to state that due to the type of discharge that he
received, he has been unable to qualify for jobs requiring background
checks and that he could be a more productive member of society if his
discharge were to be upgraded.

3.  The applicant provides in support of his application, a letter from the
pastor of his church dated 6 January 2004 and a letter from a training
officer of the Alabama Department of Corrections dated 4 January 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 6 April 1983.  The application submitted in this case is dated
5 January 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.  On 2 September 1981, he enlisted in the Army in Nashville, Tennessee,
for 3 years in the pay grade of E-1.  He successfully completed his
training as a radio teletype operator.  On 5 February 1982, upon completion
of his advanced individual training, he was transferred to Fort Benning,
Georgia.  He was promoted to the pay grade of E-2 on 1 June 1982 and to the
pay grade of E-3 on 1 August 1982.




4.  The applicant went AWOL on 1 February 1983 and he remained absent until
he returned to military control on 3 March 1983.

5.  On 3 March 1983, the applicant was notified that charges were pending
against him for being AWOL.  He acknowledged receipt of the notification
and after consulting with counsel, he waived his rights and he 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.

6.  The appropriate authority approved the request for discharge on 24
March 1983.  Accordingly, on 6 April 1983, the applicant was discharged
under other than honorable conditions, under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, in lieu of
trial by court-martial.  He had completed 1 year, 6 months and 5 days of
total active service and he had approximately 30 days of lost time due to
AWOL.

7.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

8.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, 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.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.




3.  The applicant’s post-service conduct has been noted and while the Board
is empathetic to his employment situation, neither of these factors, either
individually or in sum, warrant the relief requested.

4.  His request for a chapter 10 discharge, even after appropriate and
proper consultation with a military lawyer, tends to show he wished to
avoid trial by court-martial and the punitive discharge that he might have
received.

5.  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 this requirement.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 April 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 5 April 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

fe______  rd ______  ls  ______  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.




            ____Fred Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004103076                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041014                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19830406                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.0000.0000/FOR GOOD OF SERVICE       |
|2.  708                 |144.7100.0000/CONDUCT TRIABLE BY CM     |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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