RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20050000382


      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. Stacy R. Abrams               |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D Simmons               |     |Chairperson          |
|     |Mr. Patrick H. McGann Jr.         |     |Member               |
|     |Mr. Leonard 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 his general discharge be upgraded to an
honorable discharge.

2.  The applicant states in effect, that he was told his general discharge
would be upgraded after six months.

3.  The applicant states, in effect, that he performed his duties well
before his ability to serve in the military was impaired by his personal
hardships.

4.  The applicant states, in effect, that he never received a copy of his
DD Form 214 (Certificate of Release or Discharge from Active Duty).

5.  The applicant provides a SF Form 180 (Request Pertaining to Military
Records), dated 29 December 2004, and a self-authored statement on his
behalf.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 July 1983, the date of his separation from active duty.  The
application submitted in this case is dated 28 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 service personnel records show he enlisted in the
Regular Army on 23 January 1981 for a period of 3 years.  He successfully
completed basic and advanced individual training and was awarded the
military occupational specialty 11B (infantryman).

4.  A DA From 4187 (Personnel Action), dated 23 June 1982, shows applicant
was absent without leave (AWOL) on 22 June 1982.

5.  A DA From 4187 (Personnel Action), dated 24 June 1982, shows applicant
was present for duty on 23 June 1982.
6.  A DA From 4187 (Personnel Action), dated 30 June 1982, shows applicant
was AWOL on 29 June 1982.

7.  A DA From 4187 (Personnel Action), dated 15 July 1982, shows applicant
was present for duty on 14 July 1982.

8.  A DA Form 4187 (Personnel Action), dated 31 August 1982, shows
applicant was AWOL on 23 July 1982.

9.  A DA Form 4187 (Personnel Action), dated 31 August 1982, shows
applicant was dropped from the rolls for desertion on 22 August 1982.

10.  A DD Form 4187 (Personnel Action), dated 19 January 1983, shows
applicant was apprehended by civilian authorities and returned to military
control on 18 January 1983.

11.  A DA From 4187 (Personnel Action), dated 22 January 1983, shows
applicant was AWOL and dropped from the rolls for desertion on
24 January 1983.

12.  A DD Form 458 (Charge Sheet), dated 22 February 1983, shows applicant
was referred to trial by Special Court-Martial for being AWOL from the
period
23 July 1982 through 18 January 1983.

13.  A second DD Form 458 (Charge Sheet) dated 22 June 1983, shows
applicant was referred to trial by Special Court-Martial for being AWOL
from the period 23 July 1982 through 18 January 1983 and from the period
24 January 1983 through 8 June 1983.

14.  The applicant’s records show that, on 22 June 1983, he consulted with
counsel.  The applicant requested a discharge for the good of the service
in lieu of trial by court-martial under the provisions of chapter 10 of
Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).
His counsel also certified that he had advised the applicant of the basis
for the contemplated trial by court-martial under circumstances which could
lead to a bad conduct or dishonorable discharge, of the effects of the
request for discharge, and the rights available to the applicant.





15.  The applicant signed his request for discharge which showed that he
was making the request under his own free will and acknowledged guilt to
the offenses charged; that he was afforded the opportunity to speak with
counsel; that he was advised he may be furnished an Under Other Than
Honorable Discharge Certificate; that he may be deprived of many or all
Army benefits; that he may be ineligible for many or all Veterans
Administration benefits; that he may be deprived of his rights and benefits
as a veteran under both Federal and State law; and that he may expect to
encounter substantial prejudice in civilian life because of an under other
than honorable conditions discharge.

16.  On 29 June 1983, the first lieutenant in command of the United States
Army Processing Control Facility Company [Fort Ord, California] recommended
approval of the applicant's separation.

17.  On 30 June 1983, the major in command of Headquarters, United States
Army Personnel Control Facility [Fort Ord, California] recommended approval
of applicant's separation.

18.  On 5 July 1983, the colonel in command of Headquarters Command
[Fort Ord, California] recommended approval of applicant's separation.

19.  On 7 July 1983, the major general in command of Fort Ord, California
approved the recommendation for discharge under the provisions of chapter
10 of Army Regulation 635-200, for the good of the service with an Under
Other Than Honorable Conditions Discharge Certificate.

20.  The applicant's DD Form 214 shows that he was discharged on 19 July
1983 under the provisions of chapter 10 of Army Regulation 635-200 for the
good of the service. He had served 1 year, 6 months, and 28 days of active
service and had over 329 days of lost time.

21.  The records show that the applicant submitted his application to the
Army Discharge Review Board (ADRB) for upgrade of his discharge.

22.  On 31 October 1997, 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.




23.  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.

24.  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.

25.  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.

26.  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 under other than honorable conditions
discharge should be upgraded because he was told it would be upgraded after
six months.
2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted

3.  Records show the applicant's administrative separation was accomplished
in compliance with applicable regulation with no indication of procedural
errors that would tend to jeopardize his rights.

4.  Records show that the applicant had four offenses of AWOL totaling over
329 days.  These offenses are contrary to acceptable standards of conduct
and performance normally expected of Army personnel.  Therefore, based on
his extensive record of indiscipline, the applicant is not entitled to an
honorable discharge.

5.  The applicant's records show that he was AWOL on four different
occasions totaling over 329 days of lost time.  His records further show
that he did not voluntarily return to duty, but rather he was apprehended
by civilian authorities and returned to military control.  Based on the
nature of the applicant's indiscipline, his service was not satisfactory.
Therefore, the applicant is not entitled to a general discharge.

6.  The applicant argues that he was told that his discharge could be
upgraded to honorable in six months.  The U.S. Army does not have, nor has
it ever had, a policy to automatically upgrade discharge.  Each case is
decided on its own merits when an applicant requests a change in discharge.
 Changes may be warranted if the ABCMR determines that the characterization
of service or the reason for discharge or both were improper or
inequitable.

7.  The applicant contends he never received a copy of his DD Form 214.  A
copy of applicant's DD Form 214 is in his record and will be forwarded to
him by separate correspondence.

8.  Based on the foregoing the type of discharge and reason for separation
was appropriate considering all of the facts of this case.







9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1997, the date that the
ADRB denied his request to upgrade his discharge.  Therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 October 2000.  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

___LDS _  ___LGH _  ___PHM_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.
                                  __     Linda D. Simmons____
                                            CHAIRPERSON


            INDEX

|CASE ID                 |AR20050000382                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050726                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19830719                                |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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