RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 September 2005
      DOCKET NUMBER:  AR20050000111


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 discharge under other than
honorable conditions be upgraded to an honorable discharge based on post
service good conduct.

2.  The applicant states, in effect, that he was one of the best Soldiers
in the Army at the time.  The applicant further states that he tries to
live a Christ like life and that he gave his life to God 11 years ago and
since then his life has improved.  The applicant also states that he has a
wife and four children, is a member of the Linwood Church of Christ, and
that he serves on the Nursing Home Ministry, Building Maintenance.

3.  The applicant provides:

      a.  a letter from his wife wherein she stated that she has known the
applicant for 3 years and been married to him for 2 years.  She also stated
that the applicant is a good father and provider to his family; and

      b.  two letters from members of his church that attested to the
applicant's faithful membership in the church since being baptized about a
year ago.  The letters also stated that the applicant was always willing to
help others, especially the Nursing Home Ministry.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 April 1982, the date he was discharged.  The application
submitted in this case is dated 4 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 on 31 December
1979 for a period of 3 years.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty 94B10 (food service specialist).  The highest grade held by the
applicant was private first class/pay grade E-3.

4.  On 30 December 1980, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for pushing
a non-commissioned officer (NCO).

5.  On 18 February 1981, the applicant's commander initiated a Bar to
Reenlistment Certificate, recommending that the applicant be barred from
reenlistment.

6.  On 18 February 1981, the appropriate authority approved the applicant's
bar to reenlistment.

7.  In April 1981 the applicant's commander recommended him for discharge
because of unsuitability due to apathy.

8.  On 17 April 1981, the applicant elected a personal appearance before a
Board of Officers concerning the recommendation for discharge for
unsuitability.

9.  On 6 May 1981, the applicant accepted NJP under Article 15, UCMJ for
being absent without leave (AWOL) during the period from 27 April 1981 to
28 April 1981.

10.  On 17 June 1981, the applicant appeared before a Board of Officers
concerning his discharge due to unsuitability.  On 17 June 1981, the Board
of Officers recommended that the applicant be retained in the service and
receive a rehabilitative transfer.  On 25 June 1981, the appropriate
authority approved the recommendations of the Board of Officers.

11.  The applicant's records show that he was AWOL during the period from
29 September 1981 to 1 October 1981.

12.  The applicant's records show that he was AWOL from 11 October 1981 and
dropped from the rolls on 11 November 1981.  Records show the applicant was
apprehended by civil authorities and returned to military control on 11
December 1981.

13.  On 16 December 1981, the applicant was charged with being AWOL during
the period from 11 October 1981 to 10 December 1981.
14.  On 18 December 1981, the applicant voluntarily requested discharge for
the good of the service.  He acknowledged that he was making the request of
his own free will and acknowledged that he was guilty of the offense with
which he was charged.  He further acknowledged that he was afforded the
opportunity to speak with counsel prior to making this request.  In his
request, the applicant acknowledged that he was advised he may be furnished
an Under Other Than Honorable Conditions Discharge Certificate; that he
would be deprived of many or all Army benefits; that he may be ineligible
for many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of an under other
than honorable conditions discharge.

15.  On 23 December 1981, the applicant was evaluated by a lieutenant
colonel of the Medical Corps.  The examiner found that the applicant met
the physical retention standards prescribed in Army Regulation 40-501
(Standards of Medical Fitness). The examiner further determined that the
applicant was mentally responsible, able to distinguish right from wrong,
able to adhere to the right, and had the mental capacity to understand and
participate in proceedings.

16.  On 5 January 1982, 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.

17.  On 22 April 1982, 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 2 years, 1 month and 18 days of active service and had
63 days of time lost.  He also had 107 days excess leave.

18.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statue of limitations.

19.  Army Regulation 601-280 (Total Army Retention Program) prescribes
procedures to deny reenlistment (through a field commander’s bar to
reenlistment) to Soldiers whose immediate separation under administrative
procedures is not warranted but whose reentry into, or service beyond ETS
with, the Active Army is not in the best interest of the military service.
When discharge under administrative procedures is not warranted, action
will be taken to bar untrainable Soldiers from further service with the
Regular Army.  These Soldiers are often identified by failure to perform
the basic tasks required of their primary MOS, failure to achieve
individual weapons qualification, failure of the Army’s Physical Fitness
Test, failure of the skill qualification test, and similar reasons.
Frequently, Soldiers will meet the minimum standards for their present
grade but obviously lack the potential to become the supervisor or senior
technician of the future.

20.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the administrative
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.
The request must include the Soldier's acknowledgement that the Soldier
understands the elements of the offense(s) charged and that the Soldier is
guilty of the charge(s) or of a lesser included offense therein contained
which also authorized the imposition of a punitive discharge.  A discharge
under other than honorable conditions is normally considered appropriate.


21.  Army Regulation 635-200 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.

22.  Army Regulation 635-200 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 under other than honorable
conditions should be upgraded to an honorable discharge based on his post
service good conduct.  He also contends that he was one of the best
Soldiers in the Army at the time.

2.  Letters submitted by the applicant were reviewed, however, it is noted
that the authors of the letters became acquainted with the applicant over
20 years after his military service.  Therefore, the letters are
insufficiently mitigating to upgrade a properly issued discharge.

3.  The applicant's post service achievements and conduct are noted.
However, good post service conduct alone is not normally sufficient for
upgrading a properly issued discharge and the ABCMR does not upgrade
discharges based solely on the passage of time.

4.  Rather than facing the consequences of a trial by court-martial, the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date.

5.  The applicant voluntarily requested discharge, admitted his guilt, and
acknowledged that he could receive an under other than honorable conditions
discharge.

6.  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.

7.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

8.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

9.  The applicant had already received a Bar to Reenlistment Certificate
earlier in his enlistment.  Therefore, it is obvious that his quality of
service did not meet the standards of acceptable conduct and performance of
duty for Army personnel.  As a result, the applicant is not entitled to an
honorable discharge.

10.  A Board of Officers essentially gave the applicant a second chance to
make it in the Army.  However, in less than 4 months the applicant was AWOL
again.  It is clear that the applicant's record of service is not
satisfactory.  Therefore, there is no basis to upgrade his discharge to a
general discharge.

11.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

12.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 April 1982, the date of his
separation from the Army; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 21 April 1985.
However, the applicant has provided evidence to support his request for a
grant of clemency based on good post-service conduct.  In view of the
submitted evidence and since good post service conduct could only accrue
subsequent to discharge from the Army, it is in the interest of justice to
waive failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___le ___  ____lgh__  ___pms_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





                                  __________Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000111                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050929                                |
|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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