RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 September 2005
      DOCKET NUMBER:  AR2004106856


      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             |
|     |Mrs. Phyllis Perkins              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Richard T. 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 under other than honorable conditions
discharge be upgraded to honorable.

2.  The applicant states his ability to serve in the military was impaired
by youth and immaturity.  He further states that he has been a good citizen
since his discharge from the service.

3.  The applicant provides a copy of DD Form 214 (Report of Separation from
Active Duty), effective 28 October 1977; a letter from Army Review Boards
Agency Case Processing and Control Division, dated 26 June 1991; copies of
four nonjudicial punishments (NJP's), dated 8 March 1977, 14 May 1977, 20
May 1977, and 7 June 1977; a letter from Gloucester Township Police,
undated; two character reference letters, undated; two character reference
letters, dated 3 January 2001 and 9 May 2003; and a letter from the
Veterans of Foreign Wars, dated 29 Apr 2004.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant served little more than one year in the
Army in 1976 and 1977.  During that period, he had 44 days lost time and
four nonjudicial punishments and was administratively discharged in lieu of
trial by court-martial.

2.  Counsel further states the applicant feels that the Army's actions
separating him with an other than honorable discharge were arbitrary and
capricious.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 October 1977, the date of his discharge from active duty.
The application submitted in this case is dated 29 March 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
limitations 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's service personnel records show he enlisted in the
Regular Army on 22 June 1976 for a period of 3 years.  He completed
training and was awarded the military occupational specialty 11D10 (Armor
Reconnaissance Specialist).

4.  On 8 March 1977, NJP was imposed against the applicant for disobeying a
lawful order on 2 March 1977.  His sentence consisted of reduction from
private/pay grade E-2 to private/pay grade E-1, forfeiture of $87.00 per
month for two months, restriction to post facilities, and extra duty for 14
days.

5.  On 14 May 1977, NJP was imposed against the applicant for being absent
without leave (AWOL) during the period 10 May 1977 through 11 May 1977.
His sentence consisted of reduction from private/pay grade E-2 to
private/pay grade E-1, forfeiture of $100.00 per month for two months,
restriction to post facilities, and extra duty for 14 days.

6.  On 20 May 1977, NJP was imposed against the applicant for failure to go
to his appointed place of duty on 15 May 1977.  His sentence consisted of
forfeiture of $97.00 per month for one month.

7.  On 7 June 1977, NJP was imposed against the applicant for dereliction
in the performance of his duties on 2 June 1977, and for disobeying a
lawful order on 6 June 1977.  His sentence consisted of forfeiture of
$50.00 per month for two months, restriction to post facilities, and extra
duty for 14 days.

8.  A DA Form 4187 (Personnel Action), dated 26 August 1977, shows the
applicant was dropped from the rolls.

9.  A DA Form 4187 (Personnel Action), dated 13 September 1977, shows
the applicant surrendered to military authorities at Fort Knox, Kentucky,
on 10 September 1977.

10.  A DD Form 458 (Charge Sheet), dated 13 September 1977, shows the
applicant was referred to trial by court-martial for being AWOL from
29 July 1977 through 10 September 1977.







11.  On 5 October 1977, the applicant submitted a request for discharge for
the good of the service under the provisions of chapter 10 of Army
Regulation
635-200.  The applicant 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 Veteran’s Administration (VA), and that he may be
deprived of his rights and benefits as a veteran under both Federal and
State law.

12.  The applicant submitted a statement in his own behalf.  In his
statement, he stated that he had asked for leave to go home because he
wanted to see about his family, but leave was not granted.  He further
states that he called home and his sister informed him of what was
happening at home, so he left without getting paid and went home.

13.  On 11 October 1977, the first lieutenant in command of The Special
Processing Company, United States Army Personnel Control Facility (Fort
Knox, Kentucky) recommended approval of the applicant's request for
discharge for the good of the service and recommended the applicant be
issued an Under Other Than Honorable Conditions Discharge Certificate.

14.  On 11 October 1977, the major in command of the U. S. Army Personnel
Control Facility (Fort Knox, Kentucky) recommended approval of the
applicant's request for discharge for the good of the service and
recommended the applicant be issued an Under Other Than Honorable
Conditions Discharge Certificate.

15.  On 14 October 1977, the major general in commander of the U. S. Army
Armor Center (Fort Knox, Kentucky) approved the recommendation for
discharge under the provisions of chapter 10 of Army Regulation 635-200,
for the good of the service with an Under Other Than Honorable Discharge
Certificate.

16.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows that he was discharged on 28 October 1977 in accordance with 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, 2 months and 25
days of active service and had 44 days of lost time.





17.  On 25 July 1980, the Army Discharge Review Board (ADRB) considered the
applicant's request to upgrade his discharge.  The ADRB unanimously
determined that the discharge was proper and equitable and that the
discharge was properly characterized as under other than honorable
conditions.

18.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 10 of this regulation provides, in
pertinent part, that a member who had committed an offense of offenses for
which the authorized
punishment included a punitive discharge may at any time after the charges
had been preferred; submit a request for discharge for the good of the
service in lieu of trial by court-martial.  An under other than honorable
conditions discharge was 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an
honorable discharge.

2.  Evidence of record shows the applicant's request for separation under
the provisions of chapter 10 of Army Regulation 635-200 for the good of the
service to avoid trial by court-martial was voluntary, administratively
correct, and in compliance with applicable regulations.





3.  Records show the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time.  That all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

4.  The applicant's records show the he was AWOL on two different occasions
totaling 44 days of lost time.  His record of service also shows that the
applicant only completed 1 year, 2 months, and 25 days of his required 3
years of service.
5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time coupled with completion
of only one year of his enlistment also renders his service unsatisfactory.
Therefore, he is not entitled to a general or honorable discharge.

6.  The applicant contends that his discharge should be upgraded because
his ability to serve in the military was impaired by youth and immaturity.
Records show that the applicant was 20 at the time of his offenses.
Furthermore, there is no evidence which indicates that he was any less
mature than any other Soldiers of the same age who successfully completed
military service.  Therefore, his contention is insufficient as a basis for
an upgrade of his discharge.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 July 1980 therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 24 July 1983.  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

__SK____  _RTD___  __BJE___  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.




                                    ___Stanley Kelley____
                                            CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106856                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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