RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 February 2005
      DOCKET NUMBER:  AR2004106603


      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. Jeanie M. Biggs               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Lind M. Baker                 |     |Member               |
|     |Mr. Larry J. Olson                |     |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 undesirable discharge (UD)
be upgraded to a general or an honorable discharge.

2.  The applicant states “at the time of my discharge I had a lot of
pressing issues in my life.  My grandfather died, two sisters were very
ill, my wife to be was carrying my child.  I was needed at home very much.”
 However, since his discharge, he has been a good and upstanding citizen,
loving husband and father, and a diligent worker.

3.  The applicant provided a copy of his marriage certificate, several
copies of his degrees from his continuing education, and his Deacon’s
License.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 19 April 1976.  The application submitted in this case is dated
26 March 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 21 October 1974, the applicant enlisted in the Army for a period of
           3 years.  He was awarded the military occupational specialty of
laundry and bath specialist.

4.  On 26 March 1976, court-martial charges were preferred against the
applicant for being absent without leave (AWOL) from 1 July to 8 July 1975
and 4 August 1975 to 22 March 1976.

5.  On 30 March 1976, the applicant underwent a medical examination and was
cleared for administrative separation.

6.  On 2 April 1976, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
Army Regulation 635-200, Chapter 10.  He indicated in his request that he
understood he could be discharged under other than honorable conditions and
furnished an Undesirable Discharge Certificate; that he may be deprived of
many or all Army benefits; that he may be ineligible for many or all
benefits administered by the Department of Veterans Affairs; and that he
may be deprived of his rights and benefits as a veteran under both Federal
and State law.  He also acknowledged that he may expect to encounter
substantial prejudice in civilian life because of an under other than
honorable discharge.  He elected to submit a statement in his own behalf,
stating that he was having family problems and wanted a discharge so he
could be with his family.

7.  The applicant’s commander recommended that the applicant’s request for
discharge be approved and that he be given an undesirable discharge.

8.  The intermediate commander concurred with the recommendation for
separation.

9.  On 12 April1976, the separation authority approved the applicant’s
request for discharge and directed that he be discharged for the good of
the service and furnished an Undesirable Discharge Certificate.

10.  Accordingly, the applicant was discharged under other than honorable
conditions on 19 April 1976 under the provisions of Army Regulation
635-200, Chapter 10, for the good of the service in lieu of trial by court-
martial.    His DD Form 214 shows that he had completed 10 months, and 4
days of active service and had 238 days of lost time.

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 trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate. However, at the time of the applicant's separation the
regulation provided for the issuance of an undesirable discharge.

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, 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.

14.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant departed AWOL and he remained AWOL for over 8 months, and
he did not submit any matters of mitigation, other than the vague statement
that he had family problems, when he requested discharge.

2.  The applicant’s prolonged unauthorized absence certainly warranted an
undesirable discharge, absent any mitigating factor.

3.  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.

4.  The applicant’s post service conduct has been carefully considered by
the Board.  In this regard, the applicant has not stated that he is doing
more than what would be expected of any citizen and husband.  Such conduct,
while commendable, certainly isn’t sufficient to outweigh the seriousness
of the prolonged period of AWOL which led to the applicant’s discharge.

5.  In view of the foregoing, there is no basis for granting the
applicant’s request.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last review by the ADRB on 24 July 1981.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 23 July 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 file in this.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____mhm  ____ljo __  ___lmb__  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.




                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106603                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19760419                                |
|DISCHARGE AUTHORITY     |AR635-200, CH 10                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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