RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 August 2005
      DOCKET NUMBER:  AR20050000050


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Linda M. Baker                |     |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 an honorable discharge.

2.  The applicant states:

      a.  he would have completed his full term of service, but was
hampered by the use and selling of drugs;

      b.  he was young and did not understand what to do and the drugs made
it impossible for him to deal with life in the military;

      c.  he was not properly counseled by the military and was told that
he could get his discharge upgraded in one year; and

      d.  since his discharge, he has become a minister of the gospel, has
married and has a child.

3.  The applicant provides no documentation or other evidence in support of
his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 10 March 1978.  The application submitted in this case is dated
20 December 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 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 military records show that he enlisted in the Regular
Army on 12 May 1977 for 3 years and trained in Military Occupational
Specialty 11B10, Infantryman.

4.  On 1 December 1977, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice, for being absent without
leave (AWOL) from 17 October to 11 November 1977 and for being drunk and
disorderly.

5.  On 1 February 1978, court-martial charges were preferred against the
applicant for his period of AWOL from 5 December 1977 to 20 January 1978.

6.  On 1 February 1978, the applicant completed a separation physical
examination for the purpose of a Chapter 10 discharge.  He was found
qualified for separation.

7.  On 2 February 1978, 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 Veterans
Administration; 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
undesirable discharge.  Additionally, he elected to submit a statement in
his own behalf.

8.  In the statement on his own behalf, the applicant indicated that he had
a family and a drinking problem.  The applicant further stated that he
believed that after his discharge he could alter some of his problems.  He
also stated that his attitude was bad because he was very bored with
military life.

9.  On 10 February 1978, the commander recommended that the applicant’s
request for discharge be approved and that he be issued an under other than
honorable conditions discharge.

10.  The intermediate commander recommended approval and that he be issued
an under other than honorable conditions discharge.

11.  On 17 February 1978, the appropriate authority approved the
applicant's request for discharge for the good of the service, directed
that the applicant be reduced to private/pay grade E-1, and that he be
furnished a Discharge Certificate Under Other Than Honorable Conditions.

12.  On 10 March 1978, the applicant was discharged under the provisions of
Chapter 10 of Army Regulation 635-200, due to conduct triable by court
martial.
He had completed 7 months and 18 days of active service and had 73 days of
time lost.

13.  There is no indication in the available records to show that the
applicant applied to the Army Discharge Review Board within its 15-year
statute of limitations.

14.  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
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable condition
discharge should be upgraded to an honorable discharge.

2.  The applicant’s contention that he was immature, taking drugs and
drinking, prevented him from completing his full term of service is not
accepted.  The applicant was over 20 years of age and there is no
indication in his separation physical that he was under the influence of
any drugs that would alter his ability to be fully cognizant of the action
he was taking.  Furthermore, he prepared his request for a chapter
10 discharge with the advice and assistance of counsel.

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 voluntarily requested separation from the Army to avoid
trial by court-martial.  In doing so, he admitted guilt to the stipulated
offense.  Additionally, the applicant requested an administrative discharge
to avoid the possibility of a punitive discharge.  There is no indication
that the request was made under coercion or duress.

5.  The applicant’s entire record of service was considered.  There is no
record or documentary evidence of acts of valor, achievement, or service
that would warrant special recognition.

6.  The reason for discharge and the characterization of service were both
proper and equitable.  Further, the quality of the applicant’s service did
not meet the standards of acceptable conduct and performance expected of
Army personnel; therefore, the applicant is not entitled to an upgrade of
his discharge under other than honorable conditions to honorable.

7.  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 has failed to submit evidence that would
satisfy this requirement.

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

9.  Records show the applicant should have discovered the alleged error now
under consideration on 10 March 1978; therefore, the time for the applicant
to file a request for correction of any error or injustice expired on 9
March 1981.  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

________  ________  ________  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.




                                  ____Margaret K. Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000050                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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