RECORD OF PROCEEDINGS


           IN THE CASE OF:

      BOARD DATE:                 06 OCTOBER 2005
      DOCKET NUMBER:         AR20050001247


      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. Ronald DeNoia                 |     |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 under other than honorable conditions
discharge be upgraded.

2.  The applicant states that his actions which led to his discharge were
inappropriate but he has not been involved in criminal activity since then.
 He states that he desires a discharge upgrade so that he "may receive some
benefits, burial and respect".

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 April 1981.  The application submitted in this case is dated
27 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 entered the Army on 19 September 1978.  Upon completion
of basic training and advanced individual training he was awarded the
military occupational specialty (MOS) 76Y (Unit Supply Specialist).  The
applicant served with Company B, 1st Battalion, 72d Armor, 1st Brigade of
the 2nd Infantry Division in Korea.

4.  The applicant's records contain a DA Form 458 (Charge Sheet) dated
17 February 1981, which shows that the applicant was charged with the
following offenses:

   a.  Being absent from his unit from 17 January 1981 to 22 January 1981.


   b.  Wrongfully purchasing a bottle of liquor in violation of a general
   regulation in October 1980.


   c.  Allowing his Ration Control Plate (RCP) to be possessed by an
   unauthorized  person in violation of a general regulation on 11 February
   1981.


   d.   Selling two pairs of binoculars, military property of the United
   States, to a Korean National on 15 December 1980.


   e.  Stealing 12 albums, a value of approximately $75.00, from a fellow
   soldier on 30 November 1980.


   f.  Stealing two pairs of binoculars, a value of approximately $1098.00,
   property of the United States on 15 December 1980.


   g.  Wrongfully having in his possession, with intent to deceive, a DD
   Form 345 EK, Armed Forces Liberty Pass on 12 January 1981.


5.  On 18 February 1981, the applicant's commanding officer recommended a
trial by Special Court-Martial.  This recommendation showed three prior
punishments under Article 15, UCMJ, however, the records of proceedings
under Article 15 are not contained in the applicant's records.

6.  On 23 February 1981, the applicant requested a discharge for the good
of the service under the provisions of chapter 10, Army Regulation 635-200,
in lieu of court-martial.

7.  The commanding general of the 2nd Infantry Division approved the
applicant's request for discharge and directed he be issued an Undesirable
Discharge Certificate.

8.  Headquarters 2nd Infantry Division Orders Number 70-142, dated 12 March
1981, as amended by Orders Number 82-54, dated 24 March 1981, discharged
the applicant on 2 April 1981.  The applicant served 2 years, 6 months and
2 days and had 12 days lost due to AWOL.

9.  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 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.
An undesirable discharge, characterized as under other than honorable
conditions was normally considered appropriate.

10.  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.

11.  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.  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.

2.  The applicant's request for separation under provisions of Chapter 10
of Army Regulation 635-200 for the good of the service was voluntary,
administratively correct, and in compliance with applicable regulations.

3.  Records show that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  Lacking evidence
to the contrary, it is determined that all requirements of law and
regulations were met and the rights of the applicant were fully protected
throughout the separation process.

4.  The applicant’s record of service from 19 September 1978 through
2 April 1981 included three Article 15s and a period of AWOL of 12 days.
As a result, it is evident that his quality of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, he is not entitled to an honorable discharge or a general
discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 April 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 1 April 1984.  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                 |AR20050001247                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051006                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19810402                                |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |ILO Court-Martial                       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.       |144.0133.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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