RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           25 August 2005
      DOCKET NUMBER:  AR20050000334


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Linda Barker                  |     |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 honorable.

2.  The applicant states, in effect, his military records show a
dishonorable discharge but he spoke to a Department of Veterans Affairs
worker and she informed him that he had an honorable discharge.  He
contends he received an honorable discharge in 1976, that he went on leave
and came back on time, and that he received an honorable discharge in 1979.


3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 June 1980.  The application submitted in this case is dated
17 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 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 enlisted in the Army National Guard on 26 May 1976 for a
period of 6 years.  He was ordered to active duty for training on 18 July
1976, released from active duty on 23 October 1976, and transferred to the
Army National Guard to complete his remaining service obligation.  On 29
July 1979, the applicant was honorably discharged from the Army National
Guard and ordered to involuntary active duty for failing to participate
satisfactorily in unit training assemblies and/or annual field training.

4.  The applicant went absent without leave (AWOL) on 20 September 1979,
was apprehended by civil authorities and returned to military control on 9
April 1980.  On 23 April 1980, charges were preferred against the applicant
for the AWOL period.

5.  On 24 April 1980, the applicant consulted with counsel and requested
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 might be discharged under conditions other than honorable and
furnished an Under Other Than Honorable Discharge; that he might be
ineligible for many or all benefits administered by the Veterans
Administration; that he would be deprived of many or all Army benefits; and
that he might be ineligible for many or all benefits as a veteran under
both Federal and State law.  He also acknowledged that he might expect to
encounter substantial prejudice in civilian life because of an Under Other
Than Honorable Discharge.  He elected to submit a statement on his own
behalf.  In summary, he stated he wanted out of the Army because he could
not adjust to the Army and he went AWOL because he had a lot of
responsibilities and personal problems at home.  The applicant was placed
on excess leave on 24 April 1980.

6.  On 16 May 1980, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable
conditions on 26 June 1980 under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service in lieu of court-martial.  He had
served
7 months and 29 days of total active service with 202 days of lost time due
to AWOL.

8.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

9.  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.

10.  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.

11.  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.  Although the applicant contends that he went on leave and returned on
time, evidence of record shows he was AWOL for 202 days.  Although he
contends that he received an honorable discharge in 1979, evidence of
record shows that he was furnished a discharge under other than honorable
conditions on 25 June 1980.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant a general discharge or
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.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

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

MP____  RB______  LB______  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 Patterson_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000334                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050825                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19800626                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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