RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            22 SEPTEMBER 2005
      DOCKET NUMBER:   AR20050001631


      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. James Anderholm               |     |Chairperson          |
|     |Mr. Bernard Ingold                |     |Member               |
|     |Mr. Michael Flynn                 |     |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 to an honorable discharge.

2.  The applicant states that an honorable discharge would give him a
chance to go back to school and have a better life.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 28 March 1977.  The application submitted in
this case is dated 11 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 10 September 1975.  Upon completion
of basic training and advanced individual training he was awarded the
military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).
 The applicant served with Company B, 1st Battalion of the 4th Infantry in
Germany.

4.  On 17 May 1976, nonjudicial punishment was imposed against the
applicant for possessing contraband (marihuana) on 29 April 1976.  His
punishment consisted of reduction to the grade of private E-1, forfeiture
of $180.00 per month for 2 months, 45 days extra duty and 45 days
restriction.

5.  The applicant's records contain a DA Form 3835 (Notice of Unauthorized
Absence) which shows that, subsequent to ordinary leave taken in the U.S.,
he was reported Absent without Leave (AWOL) on 1 December 1976.  The
applicant was dropped from the rolls (DFR) on 30 December 1976.

6.  On 22 February 1977, the applicant was apprehended in Cleveland, Ohio,
by military authorities and transported to Fort Knox Kentucky.
7.  On 3 March 1977, 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.

8.  The commanding general of the US Army Armor Center, Fort Knox,
Kentucky, approved the applicant's request for discharge and directed he be
issued an Undesirable Discharge Certificate.

9.  Headquarters U.S. Army Armor Center, Fort Knox, Kentucky, Orders Number
58-45, discharged the applicant on 28 March 1977.  The applicant served 1
year, 3 months and 28 days and had 83 days lost due to AWOL.

10.  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.  A
discharge under other than honorable conditions was normally considered
appropriate.

11.  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.

12.  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 10 September 1975 through
28 March 1977 included an Article 15 and a period of AWOL of 83 days before
he was apprehended and returned to military control.  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 28 March 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 March 1980.  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

___JA___  ___BI___  ___MF___  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.




                                  _____James Anderholm________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050001631                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050922                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770328                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|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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