RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20050001606


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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, in effect, that his discharge under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that:

      a.  his conduct and efficiency ratings and his behavior and
proficiency marks were good.  The applicant further states that his record
of promotions also showed he was a good Soldier;

      b.  his record of being absent without leave (AWOL) was a minor
isolated offense;

      c.  he could not adjust to state-side duty and he was having marital
and child care problems; and

      d.  it was unfair to give him a bad discharge because he was so close
to the end of his tour and that under current standards he would not have
received a discharge under other than honorable conditions.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 16 June 1983, the date of his discharge.  The application
submitted in this case is undated and was received on 31 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 military records show that he enlisted on 30 July 1980
for a period of 3 years.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty 19D10 (cavalry scout).
4.  The applicant was assigned to the 3rd Battalion, 64th Armor in Germany
during the period from 5 December 1980 to 28 May 1982.  Upon his return to
the United States he was assigned to the 2nd Squadron, 9th Cavalry at Fort
Stewart, Georgia on 6 July 1982.

5.  The applicant was promoted to private/pay grade E-2 on 30 January 1980
and to private first class/pay grade E-3 on 1 May 1981.

6.  The records show that the applicant departed AWOL on 16 September 1982
and was dropped from the rolls on 17 October 1982.  The applicant
surrendered to military authorities on 30 April 1983.

7.  On 5 May 1983, the applicant signed an Admission of AWOL for
Administrative Purpose, wherein he declared that he was advised by his
defense counsel that the government had not received the necessary
documentation and/or records with which to obtain a conviction by a court-
martial.  The applicant further stated that he had been advised by his
counsel that he cannot completely advise the applicant without these
records.  Knowing all of this to be true, the applicant stated that he
waived all defenses that may have become known had his defense counsel been
able to review his records.

8.  The applicant knowingly, willingly, and voluntarily declared that he
was AWOL from the U.S. Army from 16 September 1982 to 28 April 1983.  The
applicant made this admission for administrative purposes only so he could
process out of the Army and realized he could receive a discharge under
other than honorable conditions.  The applicant further declared that his
military defense counsel explained to him, to his complete understanding
and satisfaction, all the legal and social ramifications of a discharge
under other than honorable conditions and what it would mean to him in the
future.

9.  The applicant's separation processing package was not available for the
Board's review.

10.  On 16 June 1983, the applicant was discharged under the provisions of
Chapter 10 of Army Regulation 635-200, for the good of the service - in
lieu of court-martial.  He had completed 2 years, 3 months, and 3 days of
active service that was characterized as under conditions other than
honorable.  He had 225 days of time lost and 39 days excess leave.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statute of limitations.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
provides, in pertinent part, for advancement of soldiers.  Specifically,
the regulation
states that a private (E-1) may be advanced to private (E-2) upon
completion
of 6 months of time in service (TIS).  The regulation further states that a
private (E-2) may be advanced to private first class (E-3) upon completion
of 12 months TIS and 4 months time in grade which is waivable to 2 months
time in grade.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), both in effect at the time and currently in effect, sets
forth the basic authority for the administrative 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.  The request must include the
Soldier's acknowledgement that the Soldier understands the elements of the
offense(s) charged and that the Soldier is guilty of the charge(s) or of a
lesser included offense therein contained which also authorized the
imposition of a punitive discharge.  A discharge under other than honorable
conditions is normally considered appropriate.

14.  The Table of Maximum Punishments of The Manual for Courts-Martial,
United States, 1969 (Revised edition) shows that the maximum punishment for
the absence from unit, organization, or other place of duty for more than
30 days is a dishonorable discharge, forfeiture of all pay and allowances,
and confinement for 1 year.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the ABCMR.  The regulation
provides that the ABCMR begins its consideration of each case with the
presumption of administrative regularity. The applicant has the burden of
proving an error or injustice by a preponderance of the evidence.

16.  Army Regulation 635-200 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.

17.  Army Regulation 635-200 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 contends that his discharge under other than honorable
conditions should be upgraded to an honorable discharge.

2.  The applicant contends that his conduct and efficiency ratings and his
behavior and proficiency marks were good and that his record of promotions
also showed he was a good Soldier.

3.  The records do not contain copies of the applicant's enlisted
efficiency reports and the applicant did not submit any evidence to support
his contention.  Although the applicant was promoted each time he was
eligible, this fact alone is insufficiently mitigating to upgrade a
properly issued discharge.

4.  The applicant contends that he could not adjust to state-side duty and
he was having marital and child care problems.  However, he has submitted
no evidence to support his contention.

5.  The applicant contends that his record of being absent without leave
(AWOL) was a minor isolated offense and that it was unfair to give him a
bad discharge because he was so close to the end of his tour and that under
current standards he would not have received a discharge under other than
honorable conditions.

6.  If the applicant had been court-martialed he could have received a much
harsher punishment than a discharge under other than honorable conditions.
Under current standards a discharge under other than honorable conditions
is considered appropriate when a member requests a discharge in lieu of
court-martial.  These provisions apply without regard as to whether a
member is at the beginning or the end of his enlistment.  Therefore, the
applicant's contentions are not supported by the evidence.

7.  Although the applicant's separation package was not available, in order
to be discharged under Chapter 10 of Army Regulation 635-200, the applicant
had to have voluntarily requested discharge, admitted his guilt, and
acknowledged that he could receive an under other than honorable conditions
discharge.  Therefore, it is presumed that the Army's administrative
processing of the applicant for discharge is correct. The applicant has the
burden of proving an error or injustice by a preponderance of the evidence.

8.  Rather than facing the consequences of a trial by court-martial, the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date.

9.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.

10.  The ABCMR begins its consideration of each case with the presumption
of administrative regularity.  In the absence of 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.  Further, it is determined that the type of discharge and the
reason for separation were appropriate considering all the facts of the
case.

11.  The ABCMR does not upgrade discharges based solely on the passage of
time.

12.  The applicant’s record of service shows 225 days of time lost.
Therefore his quality of service did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  As a result, the
applicant is not entitled to an honorable discharge.

13.  In view of the applicant's length of time lost, his record of service
is not satisfactory.  Therefore, there is no basis to upgrade his discharge
to a general discharge.

14.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

15.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 June 1983, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 15 June 1986.  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

___alr___  __mhm__  ___lds_____  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.




                                  ________Melvin H. Meyer________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001606                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051027                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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