RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20050000214


      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. Eric S. Moore                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |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, in effect, that his discharge under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he believes the cause of his separation was
not sufficient to warrant an other than honorable discharge.

3.  The applicant provides no supporting evidence with his applicant.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 May 1980, the date of his separation from active duty.  The
application submitted in this case is dated 1 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 enlisted in the Regular Army on 28 December 1978 for a
period of 3 years.  He completed basic training and advanced individual
training and was awarded military occupational specialty (MOS) 55B
(Ammunition Specialist).

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in
item 21 (Time Lost) that he was absent without leave (AWOL) from 2 April
1979 through 8 April 1979.

5.  The applicant was charged with: stealing two checks, property of an
enlisted member (EM), 22 August 1979; stealing 125 checks, property of an
EM,
3 August 1979; making false checks in the amount of 20.00 - 50.00 dollars
with the intent to defraud (10 specifications), 1 July 1979 through 29
August 1979.

6.  On 4 April 1980, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).  The
applicant indicated in his request that he understood he could be
discharged under other than honorable conditions; that he might be deprived
of many or all Army benefits; 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 under other than honorable conditions
discharge.

7.  On 22 April 1980, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200, discharge in lieu of trial by court-
martial.  On 1 May 1980, he was discharged with an under other than
honorable conditions discharge, in pay grade E-1.  He completed 1 year, 3
months, and 27 days of creditable active service and had 7 days of lost
time.

8.  On 8 April 1983, the applicant submitted an application to the Army
Discharge Review Board (ADRB).  The applicant wrote that he felt his
discharge was too harsh.

9.  On 18 June 1984, the 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.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separation) 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 trail by court-martial.  A discharge under other than
honorable conditions is normally considered appropriate.

11.  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.




12.  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.

13.  Title 10, U.S. Code, section 1552(b), provides that applications for
corrections 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 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 ABCMR should commence on
the date of final action by the ADRB.  In complying with this decision, the
Board 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.  There is no evidence of record, and the applicant has provided no
evidence, which supports his contention that his discharge should be
upgraded from under other than honorable conditions to an honorable
discharge.

2.  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.  There is no indication that the
request was made under coercion or duress.  The type of discharge directed
and the reasons therefore were appropriate considering all the facts of the
case.

3.  The evidence of record shows the applicant consulted with legal
counsel, was properly advised of his rights concerning the separation
action, and was afforded the opportunity to submit statements in his
behalf.  Evidence also shows that the applicant acknowledged and understood
that he would encounter difficulties in his civilian life because of an
under other than honorable conditions discharge.

4.  The applicant's record of service shows that he had completed 1 year,
         3 months, and 27 days of service and had 7 days of lost time due
to AWOL.  As a result, his Army service does not meet the standards of
acceptable conduct and performance of duty for Army personnel.  Therefore,
he is not entitled to an honorable discharge.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 18 June 1984.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 17 June 1987.  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

___lmd __  ___lf____  ___reb __  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.




                                  _____Ronald E. Blakely_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000214                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/05/01                              |
|DISCHARGE AUTHORITY     |AR 635-200 . . . . .                    |
|DISCHARGE REASON        |CHAPTER 10 ADMIN DISCHARGE              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR CHUN                                 |
|ISSUES         1.       |110.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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