RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                 06 OCTOBER 2005
      DOCKET NUMBER:         AR20050000406


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. Laverne Berry                 |     |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 discharge under other than honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states that he was experiencing family problems and that
his service was good prior to his absence without leave (AWOL).  He states
that he was going through a divorce in 1980.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 24 May 1983.  The application submitted in
this case is dated 27 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.  After he completed 3 years, 1 month and 22 days of service in the
Oklahoma Army National Guard (OKARNG), the applicant was discharged under
honorable conditions on 8 May 1977 and he was ordered to involuntary active
duty due his failure to participate.

4.  The applicant entered active duty in the pay grade of E-2 on 9 May 1977
and he was assigned in a cannon crewman military occupational specialty.
He was promoted to the pay grade of E-3 on 1 August 1977.

5.  Nonjudicial punishment was imposed against the applicant on 6 January
1978 for being absent from his unit from 4 January until 5 January 1978 and
for violating a lawful regulation by being off post without a liberty pass.
 His punishment consisted of a forfeiture of pay in the amount of $50.00, 7
days of restriction, and 7 days of extra duty.

6.  The applicant was promoted to the pay grade of E-4 on 1 April 1978.
After completing 1 year, 6 months, and 21 days of net active service during
this period of enlistment, he reenlisted in the Army on 30 November 1978,
for 6 years, in the pay grade of E-4.

7.  The available records show that the applicant was pending trial by a
summary court-martial for being AWOL from 9 July until 1 August 1980 and
from 4 August until 5 August 1980, when he went AWOL again on 3 September
1980.  He remained absent in desertion status until he was apprehended by
the civil authorities and was returned to military control on 23 April
1983.

8.  On 27 April 1983, the applicant was notified that charges were pending
against him for his AWOL offenses.  He acknowledged receipt of the
notification and after consulting with counsel, he submitted a request for
discharge under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service in lieu of trial by court-martial.  The applicant
was provided an opportunity to submit a statement in his own behalf and he
opted not to do so.

9.  The appropriate authority approved the request for discharge on 11 May
1983.  Accordingly, on 24 May 1983, the applicant was discharged, under
other than honorable conditions, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial.  He had completed 3 years, 4 months and 25 days of net active
service during this period of enlistment and he had approximately 2 years,
7 months, and 19 days of lost time due to AWOL.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 5 May 1988, the ADRB denied the applicant’s
request for upgrade.  The ADRB determined that the applicant’s discharge
was proper and equitable and that the discharge was properly characterized
as under other than honorable conditions.

11.  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 United States 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 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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, there is no
evidence in the available records that support his contention that he was
experiencing family problems during those AWOL offenses.  The evidence of
record does show however, that he was AWOL for approximately 2 years, 7
months, and 19 days and that he had a total of three AWOL offenses.
Considering his numerous acts of indiscipline, it does not appear that the
type of discharge that he received is too harsh or unjust.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 May 1988.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 4 May 1991.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____CG _  ____RD _  ___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.




                                  _____Curtis Greenway______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000406                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051006                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19830524                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  689  |144.7000/FOR THE GOOD OF THE SERVICE    |
|2.  708                 |144.7100/CONDUCT TRIABLE BY CM- AWOL    |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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