RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 January 2005
      DOCKET NUMBER:  AR2004106980


      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. Prevolia Harper               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. James E. Anderhom             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 a general under honorable conditions discharge.

2.  The applicant states that he was under bad leadership at his former
unit at Fort Campbell, Kentucky.  He continues that he followed orders and
did everything he was told to do by his superiors.

3.  The applicant provides an undated and unsigned letter, a copy of a
letter from an individual, dated 30 July 2003, a copy of a letter, dated 5
August 2003, and a  copy of a DD Form 293 (Application for Review of
Discharge or Dismissal from the Armed Forces of the United States), dated
23 July 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 May 1982, the date of his separation from active service.  The
application submitted in this case is dated 28 August 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 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 initially entered active duty on 29 December 1975.  The
applicant completed basic and advanced individual training and was awarded
the military occupational specialty 12B10 (Combat Engineer).  The applicant
served 3 years and received an honorable discharged on 22 December 1978.
The applicant reenlisted on 28 August 1980.  He was separated from active
duty under conditions other than honorable on 5 May 1982.

4.  On 9 November 1981, the applicant received nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ), for failure to
go to his appointed place of duty at Fort Campbell, Kentucky.  His
punishment consisted of reduction to private first class/pay grade E-3,
forfeiture of $100 per month for 1 month, extra duty for 14 days, and
restriction to the company area for 14 days.


5.  On 4 December 1981, the applicant appealed the punishment imposed
against him on 9 November 1981 (including reduction in rank to private
first class/pay grade E-3).  The applicant cited his prior record and the
fact that he was experiencing financial problems as a basis for his appeal.
 The applicant's appeal was denied by the Fort Campbell Staff Judge
Advocate on 11 December 1981.

6.  A DA Form 4187 (Personnel Action), dated 5 January 1982, shows that
the applicant was absent without leave (AWOL) effective 4 January 1982 .
The applicant returned to military authorities at Fort Campbell on 7
January 1982.

7.  On 22 January 1982, the applicant received NJP under the Uniform Code
of Military Justice (UCMJ) for willfully disobeying a lawful order not to
drive his privately owned vehicle to his work site and failure to go to his
appointed place of duty.  His punishment consisted of reduction to
private/pay grade E-1, restriction to the company area for 30 days, extra
duty for 30 days, and forfeiture of $200 per month for 2 months.

8.  The applicant went AWOL again from Fort Campbell on 25 January 1982.
He was dropped from the rolls for desertion effective 25 February 1982.

9.  On 7 March 1982, the applicant was apprehended by civilian authorities
in Crystal, Michigan.  He was subsequently returned to military control at
the United States Army Personnel Control (PCF) Facility at Fort Knox,
Kentucky.  The applicant's chain of command at Fort Campbell was notified
of his confinement.

10.  On 11 March 1982, the applicant, while assigned to the PCF at Fort
Knox, submitted an ATZK-SB Form 4256 (Admission of AWOL for Administrative
Purpose) wherein he declared that he had been advised by his defense
counsel that the government had not received the necessary documentation
with which to obtain a conviction by a court-martial.  This form also shows
that the applicant knowingly, willingly, and voluntarily declared that he
was AWOL for the period
25 January 1982 through 7 March 1982.

11.  The ATZK-SB Form 4256 also shows that the applicant completely
understood all the legal and social ramifications of the type of discharge
and what it would mean in his future.  The applicant authenticated this
form in his own hand.

12.  The complete facts and circumstances surrounding the applicant's
discharge under the provisions of chapter 10, Army Regulation 635-200
(Personnel Separations – Enlisted Personnel), in lieu of trial by court-
martial were not in the available records.
13.  The applicant's DD Form 214 shows that he was separated on 5 May 1982,
under the provisions of chapter 10 of Army Regulation 635-200 for the good
of the service in lieu of trial by court-martial and furnished an Under
Other Than Honorable Conditions Discharge Certificate.  The applicant's DD
Form 214 also shows that he had served 1 year, 6 months, and 23 days with
44 days of lost time due to AWOL.

14.  The applicant submitted a self-authored statement in which he stated
that he was under bad leadership at Fort Campbell, Kentucky.  The applicant
continued that he did everything he was told to do and that the leadership
acted like a "bunch of jerks."  The applicant further stated that he was
given an Article
15 despite the fact that he did his best.

15.  The applicant applied to the Army Discharge Review Board for an
upgrade of his discharge.  The ADRB considered the applicant's case on 14
January 1983.  The ADRB found that the applicant had been properly and
equitably discharged.  As a result, the ADRB voted unanimously to deny his
request.

16.  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.

17.  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.

18.  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.


19.  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 contends that his discharge under other than honorable
conditions should be upgraded to a general discharge.

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

3.  The applicant contends that he was under "bad leadership" while
assigned to Fort Campbell.  However, the applicant has provided no evidence
to support his contention and there is no evidence in the available records
which show that the applicant's former chain of command acted improperly.

4.  There is no evidence and the applicant did not provide any evidence
that the discharge process was improper or flawed.  The applicant’s
administrative separation was accomplished in compliance with applicable
regulations and there is no indication of procedural errors that would tend
to jeopardize his rights. The discharge proceedings were conducted in
accordance with law and regulations applicable at the time and the
character of the discharge is commensurate with the applicant's overall
record of military service.

5.  The complete discharge processing documents are not available in the
applicant's records.  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 throughout the separation
process.

6.  After appropriate and proper consultation with a military lawyer, the
applicant showed that he wished to avoid trial by court-martial and the
punitive discharge that he might have received.  There is no indication
that the request was made under coercion or duress.

7.  Although the applicant served honorably during his first term of
service, it is evident that his quality of second term of service did not
meet the standards of acceptable conduct and performance of duty for Army
personnel.  Therefore, he is not entitled to an honorable discharge.

8.  The applicant’s record of service that includes two non-judicial
punishments and 44 days of lost time due to AWOL is not satisfactory.  As a
result, there is insufficient basis for upgrading his discharge to a
general discharge.

9.  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 did not submit any evidence that would
satisfy this requirement.

10.  Records show the applicant should have discovered the error or
injustice now under consideration on 15 February 1983, the date the ADRB
denied his appeal. Therefore, the time for the applicant to file a request
for correction of the alleged error or injustice expired on 14 February
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 file
in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kan___  __jea___  __lmd___  DENY APPLICATION










BOARD DETERMINATION/RECOMMENDATION:

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.



                                        Kathleen A. Newman
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004106980                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050125                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19820505                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 10                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7110                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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