RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:        21 December 2004
      DOCKET NUMBER:  AR2004103589


      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. Eric S. Moore                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Seema E. Salter               |     |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 under other than
honorable conditions be upgraded so he may receive benefits.

2.  The applicant states, in effect, that he has two discharges, the first
being an honorable and the second being under other than honorable
conditions.  The applicant continues that he only took the general under
other than honorable discharge because he was having family problems at
home and needed to be there.

3.  The applicant further states when he signed his discharge he was told
that he would "get the benefits" and "not have anything left with the Army,
no bills, anytime not anything."  The applicant concludes, "now I wish for
you [the Army] to live up to the contract we made, and give me my benefits.

4.  The applicant provides an undated letter written on his own behalf in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 June 1985, the date of his separation from active duty.  The
application submitted in this case is dated 24 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.  The applicant enlisted in the Regular Army on 12 March 1980, for a
period of three years.  He completed basic and advanced individual training
and was awarded military occupational specialty 13E (Cannon Fire Direction
Specialist).  The applicant was promoted to the rank of sergeant/pay grade
E-5.

4.  The applicant was honorably discharged from active duty on 13 December
1982 for the purpose of immediate reenlistment.  He completed 2 years,
        9 months, and 2 days of active service during this enlistment.

5.  The applicant reenlisted on 14 December 1982 for a period of six years.

6.  Records show that the applicant was absent without leave (AWOL) for the
period 1 August 1984 through 3 August 1984.  There is no record of any
punishment imposed against the applicant for this offense.

7.  Records show that the applicant was AWOL on 24 September 1984 and
remained absent until 15 May 1985, when he surrendered himself to military
authorities at Fort Bragg, NC.

8.  The facts and circumstances pertaining to the applicant's chapter 10
discharge proceedings are not present in his records.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty), with a separation date of 17 June 1985, shows that the
applicant was discharged under the provisions of chapter 10 of Army
Regulation 635-200, for the good of the service in lieu of court-martial.
He had served 1 year, 10 months, and 12 days of active service with 233
days of lost time due to AWOL.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within the board's
15-year statue of limitations.

11.  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 trail by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

12.  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.




13.  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 so he may
be eligible for benefits.

2.  The discharge packet is not available in the applicant's record.
However, in the absence of 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 through the separation process.

3.  The applicant contends that he only took the current discharge because
he was having family problems.  There is no evidence to show the applicant
requested a hardship discharge or compassionate reassignment through the
appropriate military officials.  Therefore, there is no factual basis for
this contention.

4.  The applicant's previous honorable service is noted; however, evidence
shows that he was AWOL on two separate occasions for a total of 233 days
during his second enlistment.

5.  Based on the 233 days of lost time, the applicant's quality of service
does 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.  There is no evidence and the applicant has not presented any evidence
to show that the discharge process was flawed, in error or unjust.  There
is insufficient basis for upgrading his discharge to a general discharge,
particularly in view of his extended period of AWOL.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 June 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         16 June 1988.  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 ___  __ses___  __pms___  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                 |AR2004103589                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/21                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1985/06/17                              |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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