RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          9 August 2005
      DOCKET NUMBER:  AR20050000482


      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. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Kenneth Wright                |     |Member               |
|     |Mr. Patrick McGann                |     |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 honorable or general.

2.  The applicant states his overall service was not given due
consideration.

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 18 August 1978.  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 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 on 24 May 1977 for a period of 3 years.  He
successfully completed basic combat training.

4.  On 7 November 1977, nonjudicial punishment was imposed against the
applicant for possession of marijuana.  His punishment consisted of a
forfeiture of pay.

5.  On 18 January 1978, nonjudicial punishment was imposed against the
applicant for two specifications of being absent without leave (AWOL)
(21 November 1977 to 29 November 1977 and 5 January 1978 to 10 January
1978).  His punishment consisted of a forfeiture of pay, restriction, and
extra duty.

6.  He was awarded military occupational specialty 13B (cannon crewman).

7.  On 18 July 1978, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of restriction
and extra duty.

8.  On 26 June 1978, charges were preferred against the applicant for
burglary.  Trial by special court-martial was recommended.
9.  On 13 July 1978, 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 other than honorable conditions;
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
a discharge under other than honorable conditions.  He elected not to make
a statement in his own behalf.

10.  On 21 July 1978, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

11.  Accordingly, the applicant was discharged under other than honorable
conditions on 18 August 1978 under the provisions of Army Regulation 635-
200, chapter 10, for the good of the service.  He had served 1 year, 2
months and 10 days of total active service with 15 days of lost time due to
AWOL.

12.  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.

13.  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.

14.  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.

15.  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.  The applicant’s record of service included three nonjudicial
punishments, 15 days of lost time, and serious misconduct (burglary) that
led to referral of a special court-martial charge.  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 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.  He had an opportunity to submit a
statement in which he could have voiced his concerns and he failed to do
so.

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 18 August 1978; therefore, the time for the
applicant to file a request for correction of any injustice expired on 17
August 1981.  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

BE_____  KW_____  PM______  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.




            __Barbara Ellis_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050000482                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050809                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780818                                |
|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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