RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 December 2004
      DOCKET NUMBER:  AR2004106614


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred 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 that his discharge be upgraded from under other
than honorable conditions to an honorable or general discharge.

2.  The applicant states, in effect, at the time of his discharge he was
pressured into requesting a for the good of the service discharge by his
superiors or face the consequences of a military court-martial.

3.  The applicant states that prior to his service he had an alcohol and
drug problem which caused most of his troubles.  The applicant continued
that he was influenced by his peers and lacked the proper guidance from his
superiors.

4.  The applicant continues that he has continued hearing loss that
occurred during basic training weapons qualification at Fort Jackson, South
Carolina.

5.  The applicant further states that he should have been medically
discharged from the service after his eardrum was damaged.  The applicant
concluded that the initial charges he received in Alaska, by civilian
authorities, had been dropped and that he was never a deserter.

6.  The applicant provides a Veterans Service Representative narrative
summary, dated 7 March 2004; a three page Department of the Army, Cleveland
District Recruiting Command, Determination of Acceptance (Moral Waiver),
dated 21 November 1979; a DD Form 214 (Certificate of Release or Discharge
From Active Duty), dated 23 November 1979; a four page DD Form 4
(Enlistment/Reenlistment Document - Armed Forces of the United States),
dated 23 November 1979; two DA Forms 4187 (Personnel Action), dated 25
August 1980; and a nine page Trial Court of the State of Alaska, dated 12
September 1980. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The counsel requests that the applicant's discharge be upgraded from
under other than honorable conditions to an honorable or general discharge.

2.  The counsel states, in effect, that the applicant's Application for
Determination of Moral Eligibility for Enlistment which showed the
applicant had attended high school and did not show the applicant had two
pending criminal charges as an adult against him was inaccurate.

3.  The counsel states that the applicant requested Military Police as the
occupation he wanted to obtain and was led to believe by his recruiters
that he could attain the specialty upon enlistment.

4.  The counsel continues that the applicant contends that he received
damage to his eardrums while at weapons qualification during basic
training.

5.  The counsel states that the applicant's chain of command knew where he
was while in civilian confinement on criminal charges in Alaska.  The
counsel contends that the applicant was pressured by his superiors to
request a discharge for the good of the service.  The applicant was told if
he was found guilty by court-martial he would be confined at Fort
Leavenworth.

6.  The counsel concludes that the applicant was also told that his
discharge would be upgraded after six months.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an injustice that occurred on

18 March 1981, the date of his separation from active duty.  The
application
submitted in this case is dated 14 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.  A DD Form 4/1 (Enlistment/Reenlistment Document-Armed Forces of the
United States) dated 23 November 1979, item 10c (Agreements) shows that the
applicant acknowledged that the agreements in this section and the attached
annex(es) are all the promises made to him by the government.  Anything
else anyone has promised him is not valid and will not be honored.

4.  A DD Form 1966/4 (Application for Enlistment - Armed Forces of the
United States), dated 21 November 1979, item 37 (Character and Social
Adjustment) shows that the applicant indicated that he had never taken any
narcotic substance, sedative, stimulant, tranquilizer, or that use of
alcohol beverages that resulted in the loss of a job, arrest by police, or
treatment for alcoholism.

5.  A DD Form 1966/5, dated 21 November 1979, item 40 (Involvement With
Police or Judicial Authorities) shows that the applicant indicated that he
was not involved in or connected with any court action or civil suit.

6.  A DD Form 1966/6, dated 21 November 1979,VII (Enlistment Options) shows
that the applicant indicated his unit of choice enlistment option was the
172nd Infantry.

7.  The applicant enlisted in the Regular Army on 23 November 1979 and
successfully completed basic training and advanced individual training
(AIT).  He was awarded military occupational specialty 94B (Food Service
Specialist).  The applicant was assigned to Headquarters and Headquarters
Company, 1st Battalion, 60th Infantry, 172nd Infantry Brigade at Fort
Richardson, Alaska.

8.  Medical records show that during February and March of 1980 the
applicant was given medical treatment for migraine headaches and loss of
hearing in both ears.

9.  The applicant was absent without leave (AWOL) for the periods 28 July
1980 through 14 August 1980 and 24 August 1980 through 13 September 1980.

10.  The applicant was confined by civilian authorities from 14 September
1980 through 24 December 1980 for theft in the third degree.

11.  On 5 March 1981, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.

12.  A Standard Form 88 (Report of Medical History), dated 9 March 1981,
shows that the applicant was qualified for separation.

13.  A Standard Form 89 (Report of Medical Examination), dated 9 March
1981, shows that the applicant was being separated and that his present
health was "good."

14.  The applicant's service personnel records do not contain the facts and
circumstances surrounding his separation process.  However, his DD Form 214
shows that he was discharged under the provisions of chapter 10 of Army
Regulation 635-200 (Personnel Separations) by reason of misconduct.  Item
26 (Separation Code) shows the entry "JFS."  Army Regulation 635-5-1
(Separation Program Designator (SPD) Codes) identifies separation code JFS
as "Administrative Discharge Conduct Triable By Court-Martial."
15.  On 18 March 1981, the applicant was discharged from active duty and
was issued an under other than honorable conditions discharge based on the
provisions of chapter 10 of Army Regulation 635-200.  He served 1 year,
3 months, and 26 days of creditable active service and had 143 days of lost
time due to AWOL and civil confinement.

16.  The applicant submitted a three-page document from the Department of
the Army, Cleveland District Recruiting Command, Determination of
Acceptance (Moral Waiver), dated 21 November 1979, which shows that the
applicant's
request for waiver was approved for his prior juvenile offenses.

17.  The applicant submitted a nine-page Trial Court of the State of Alaska
document, dated 12 September 1980, which shows that charges were dropped
against the applicant for theft in the third degree after restitution
payment of $150.00.

18.  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.

19.  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.

20.  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.

21.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-10,
provides that trained and experienced personnel will not be categorically
disqualified if they are capable of effective performance of duty with a
hearing aid.  Most soldiers having a hearing defect can be returned to duty
with appropriate assignment limitations.  Soldiers incapable of performing
duty with a hearing aid will be referred for Medical Evaluation
Board/Physical Evaluation Board processing.

22.  Department of Defense Financial Management Regulation Volume 7, Table
1-13 provides rules for determining whether absence is unavoidable.  When a
member is absent from duty in confinement by civil authorities or military
authorities for civil authorities and is released without trial upon
agreement to make restitution or reparation for the alleged offense, and
the commander determines that the absence was not due to member's
misconduct, then the absence may be excused as unavoidable.

23.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant request change in discharge.  Changes may be warranted if
the Board determines that the characterization of the service or the reason
for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was pressured into requesting a for the
good of the service discharge by his superiors or face the consequences of
confinement at Fort Leavenworth if he was convicted by a military court-
martial.  Although separation processing documentation in this case is
incomplete, official documents show that separation processing took place.
In the absence of evidence to the contrary, it is presumed that the
applicant's separation was accomplished in compliance with applicable
regulation and without procedural errors that would jeopardize his rights.

2.  The applicant contends that prior to and during his service he had an
alcohol and drug problem.  There is no evidence in the available records
which shows that the applicant requested help though his chain of command,
chaplain, or the unit alcohol and drug program representative.  Records
show that the applicant did not list alcohol or drug problems on his DD
Form 1966/4 or list any court actions on his DD Form 1966/5 upon his
enlistment.

3.  The applicant contends that he was promised a Military Police military
occupational specialty by his recruiters.  There is no evidence to show
that he was promised a Military Police military occupational specialty.
Records show that the applicant enlisted only for unit of choice enlistment
option,  He acknowledged that no other written promises were made to him
and that no other promises were valid.

4.  The applicant contends that he received damage to his eardrums while at
weapons qualification during basic training.  There is no evidence to show
that he could not perform his duties due to loss of hearing.

5.  The applicant contends that his chain of command knew where he was
during his confinement with civilian authorities.  Evidence of record shows
that the applicant was released without trial after making restitution to
the victim of the crime.  There is no evidence to show that the unit
commander determined that the absence was not due to his misconduct.
Therefore, his civilian confinement is considered lost time.

6.  The applicant's records show that he was confined by civilian
authorities for theft and was AWOL for two periods during his military
service.  Based on these facts, his record of service did not meet the
regulatory standard of acceptable conduct and performance.  As a result,
the applicant is not entitled to an honorable discharge

7.  Based on the applicant’s multiple offenses and the nature of those
offenses, the applicant’s service clearly did not meet the standards of
satisfactory service for Army personnel.  In the absence of a record of
satisfactory service, the applicant is not entitled to a general discharge.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 March 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 17 March 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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE ___  __PMS_ _  __SES __  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.




                                  ____ Mr. Fred Eichorn ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004196614                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |21 December 2004                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133.000                            |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]