RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 SEPTEMBER 2005
      DOCKET NUMBER:   AR20050001211


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul Smith                    |     |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 that his discharge under other than honorable
conditions be upgraded to honorable.

2.  The applicant states, in effect, that he desires his discharge to be
upgraded.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 January 1980.  The application submitted in this case is
dated 5 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 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.  He enlisted in Newark, New Jersey, on 9 July 1976, for a period of 4
years and training as a wheel vehicle mechanic.  He completed his training
at Fort Dix, New Jersey, and was transferred to Germany on 19 November
1976.

4.  On 12 April 1977, nonjudicial punishment (NJP) was imposed against him
for dereliction in the performance of his duties in that he negligently
failed to replace the wheel bearing locking nut cotter pin on a vehicle he
worked on and it resulted in the wheel coming off when in use.  His
punishment consisted of a forfeiture of pay and extra duty.

5.  On 2 February 1978, NJP was imposed against him for being disrespectful
in language towards a superior noncommissioned officer (NCO).  His
punishment consisted of a reduction to the pay grade of E-2, a forfeiture
of pay and extra duty.

6.  On 15 February 1978, NJP was again imposed against him for being
disrespectful towards a superior NCO.  His punishment consisted of a
reduction to the pay grade of E-1 and extra duty.
7.  On 30 March 1979, NJP was imposed against him for being disrespectful
in language towards a superior NCO.  His punishment consisted of a
reduction to the pay grade of E-1 (suspended for 1 month), a forfeiture of
pay and extra duty.

8.  He departed Germany on 22 April 1979 and was transferred to Fort Hood,
Texas, where he was assigned to a signal company.

9.  On 8 August 1979, NJP was imposed against him for being absent without
leave (AWOL) from 18 July to 19 July 1979.  His punishment consisted of a
reduction to the pay grade of E-2, restriction for 14 days (both suspended
for 60 days), a forfeiture of pay, and extra duty.  The suspended portion
of his sentence was vacated on 21 August 1979.

10.  On 1 October 1979, he went AWOL and remained absent in a deserter
status until he surrendered to military authorities at Fort Dix on 6
November 1979, where charges were preferred against him for the AWOL
offense.  At the time of his return to military control he indicated that
he went AWOL because he did not get along with his platoon sergeant who
picked on him because he (the applicant) was white.  He also stated that he
wanted nothing further to do with the Army.

11.  On 16 November 1979, after consulting with defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial.  In his request he indicated that he understood the
charges that had been preferred against him, that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He further declined to submit a
statement or explanation in his own behalf.

12.  The appropriate authority (a major general) approved his request on
15 December 1979 and directed that he be discharged under other than
honorable conditions.



13.  Accordingly, he was discharged under other than honorable conditions
on 25 January 1980, under the provisions of Army Regulation 635-200,
chapter 10, in lieu of trial by court-martial.  He had served 3 years, 5
months and 12 days of total active service and had 35 days of lost time due
to AWOL.

14.  There is no evidence in the available records to show that he applied
to the Army Discharge Review Board for an upgrade of his discharge within
that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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 should have discovered the alleged error or
injustice now under consideration on 25 January 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 January 1983.  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

____LE__  ___PS __  ___LH  __  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.




            ____Lester Echols__________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001211                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050929                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1980/01/25                              |
|DISCHARGE AUTHORITY     |AR 635-200/ch10 . . . . .               |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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