RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 September 2005
      DOCKET NUMBER:  AR20050000911


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 under other than honorable conditions
discharge be upgraded.

2.  The applicant states that there was no error made in his discharge,
however, after three years his discharge is eligible to be reviewed for
possible upgrade.

3.  The applicant provides a statement requesting to appear before the
Board in Los Angeles, if possible.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting upgrade of his discharge dated 25 November
1985.  The application submitted in this case is dated 4 January 2005.

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 record shows he enlisted in the Regular Army and
entered active duty on 7 February 1984.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11B10 (Infantryman).

4.  On 10 October 1985, the applicant signed a statement declining a
separation medical examination.

5.  On 16 October 1985, the applicant signed an admission of AWOL statement
for administrative purposes.  The applicant admitted that he was advised by
defense counsel and he knowingly, willingly and voluntarily declared that
he was absent without leave from the US Army from 6 January 1985 to 7
October 1985.

6.  On 17 October 1985, the applicant consulted with his counsel and
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.


7.  The applicant signed his request for discharge which showed that he was
making the request under his own free will; that he was afforded the
opportunity to speak with counsel; that he may be furnished an Under Other
Than Honorable Conditions 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; and that he may expect to encounter
substantial prejudice in civilian life because of the Other Than Honorable
Discharge.  The applicant further understood that there is no automatic
upgrading or automatic review of his discharge by any government agency or
the Army Board for the Correction of Military Records.  The applicant
elected not to provide a statement on his behalf.

8.  On 28 October 1985, the captain in command of the Special Processing
Company, Fort Knox, Kentucky, forwarded the recommendation for the
applicant's separation under the provisions of Army Regulation 635-200,
Chapter 10, for the good of the service.  The commander stated that the
applicant’s conduct could lead to a bad conduct or dishonorable discharge
if tried by court-martial.  He recommended a discharge under other than
honorable conditions.

9.  The lieutenant colonel in command of Headquarters, USA Personnel
Control Facility, 2d Armor Training Brigade, also recommended approval of
the discharge action.  He recommended that the applicant be issued a
discharge under other than honorable conditions.

10.  On 31 October 1985, the acting commander of the Armor Center/School
Brigade, at Fort Knox, approved the applicant’s discharge under the
provisions of Chapter 10 of Army Regulation 635-200 with an under other
than honorable conditions discharge.

11.  The applicant's DD Form 214 shows that he was discharged under other
than honorable conditions on 25 November 1985.  The applicant had 1 year
and 18 days of creditable service and 274 days lost due to AWOL.

12.  On 10 Oct 1993, the applicant appealed to the Army Discharge Review
Board (ADRB) to upgrade his discharge.  On 21 August 1996, the ADRB denied
the applicant’s request for a discharge upgrade.  The ADRB unanimously
determined that the discharge was both proper and equitable.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), 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 trial by court-martial.  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.

16.  Army Regulation 15-185 governs operations of the Army Board for
Correction of Military Records (ABCMR).  Paragraph 2-11 of this regulation
states that applicants do not have a right to a hearing before the ABCMR.
The regulation provides that the Director of the ABCMR or the Board may
grant a formal hearing before which the applicant, counsel and witnesses
may appear whenever justice requires.

17.  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 ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 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.  The applicant admits that there were no errors in the issuance of his
discharge certificate.  However, he contends that the discharge is eligible
for review after three years for possible upgrade.

2.  Evidence of record confirms that all requirements of law and regulation
were met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of service.

3.  The ABCMR only conducts hearings in Arlington, Virginia.  Therefore,
the applicant cannot appear before the Board in Los Angeles, California.
Only the Director of the ABCMR or the Board will determine if justice
requires the applicant to appear before the Board.

4.  There are no provisions in the Army regulations for automatically
upgrading a discharge after a period of time has elapsed.  The applicant
must provide evidence to prove that the discharge was rendered unjustly, in
error, or that there were mitigating circumstances which warrants the
upgrade.  Therefore, the contention of the applicant that his discharge
merits a possible upgrade after three years is not sufficient as a basis to
upgrade his under other than honorable conditions discharge.

5.  The applicant’s record of service shows 274 days of lost time due to
AWOL.

6.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general or an
honorable discharge.

7.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the Army Discharge Review
Board on 21 August 1996.  As a result, the time for the applicant to file a
request for correction of any error or injustice expired on 20 August 1999.
 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

_CAK__  __ENA__  __JNS____  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.




                                      ___John N. Slone___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000911                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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