RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 September 2005
      DOCKET NUMBER:  AR20050001927


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Bernard P. Ingold             |     |Member               |
|     |Mr. Michael J. 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.

2.  The applicant states that he wishes to receive his flag and headstone.
He explains that he went through his chain of command to receive a hardship
discharge to save the family farm.  However, he said nothing was done and
after six months, he left his company without telling anyone.

3.  The applicant provides his self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 21 March 1984.  The application submitted in this case is
dated      29 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 6 September 1978.  He was trained in, awarded, and
served in military occupational specialty (MOS) 19E10 (Armor Crewman).  The
highest rank he attained while serving on active duty was sergeant/E5.

4.  On 4 November 1982, nonjudicial punishment (NJP) was imposed against
the applicant for leaving his appointed place of duty.  His punishment
consisted of reduction to grade of E-4, forfeiture of $427.00 per month for
2 months, suspended for 6 months, and extra duty for 45 days.

5.  On 21 February 1984, the applicant was charged with being absent
without leave (AWOL) from 10 January 1984 until 14 February 1984.

6.  On 22 February 1984, 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 will be administratively reduced to the
grade of Private/E-1, that he will forfeit all accrued leave, that he may
be ineligible for many or all benefits administered by the Veterans
Administration and that he may be deprived of all his rights and benefits
as a veteran under both Federal and State law.  The applicant further
understood that he may expect to encounter substantial prejudice in
civilian life because of an Other Than Honorable Discharge.  The applicant
initials indicated that statements on his behalf were submitted with his
request.

8.  On 1 March 1984, the commander of the US Army Processing Company,
recommended approval of the applicant’s request for discharge for the good
of the service under the provisions of Chapter 10, Army Regulation 635-200.
 He recommended a discharge under other than honorable conditions.  He
states in the disposition form, that the applicant has consulted an
attorney and understands the consequences of this request.  He maintained
that the applicant’s pattern of behavior indicated that retention was
neither practical nor desirable.

9.  On 2 March 1984, the commander of the US Army Personnel Control
Facility also recommended approval on the applicant’s request for discharge
and issuance of an under other than honorable conditions discharge.

10.  On 7 March 1984, the Headquarters Commander, recommended approval on
the applicant’s request for discharge for the good of the service under the
provisions of Chapter 10, Army Regulation 635-200.  He also recommended a
discharge under other than honorable conditions.

11.  On 10 March 1984, the Staff Judge Advocate (SJA) concurred with the
applicant’s request for discharge for the good of the service under Chapter
10, Army Regulation 635-200.  The SJA also concurred with the chain of
command’s recommendation for issuance of an Other Than Honorable Discharge
Certificate.



12.  On 13 March 1984, the major general in command of 7th Infantry
Division and Fort Ord, California, approved the applicant’s discharge under
the provisions of Chapter 10 of Army Regulation 635-200 with an under other
than honorable conditions discharge.  He directed that the applicant be
reduced to the lowest enlisted grade.

13.  The applicant's DD Form 214 shows that he was discharged under other
than honorable conditions on 21 March 1984.  The applicant had 5 years,
      5 months and 11 days of creditable service.

14.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board for an upgrade of his discharge within the 15-
year statute of limitations of that board.

15.  In support of his application the applicant provided his self-authored
statement.  In his statement the applicant expounds on his accomplishments
during his military career.  He states that he was a top Soldier, attended
both Primary Noncommissioned Officer Course and Basic Noncommissioned
Officer Course.  He maintains that he made corporal faster than any of his
peers and selected as the Soldier of Year during 1981.  He concluded that
he has served his country well and he now has aids and cancer and would
like a flag and a head stone.

16.  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.

17. 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.


18.  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.  The applicant contends that his discharge should be upgraded so that he
can receive his flag and headstone.  Additionally, the applicant states
that he went through his chain of command to receive a hardship discharge
to save the family farm.  However, he maintains that nothing was done after
six months; therefore, he left the company without telling anyone.

2.  Evidence of record shows the applicant’s request for separation under
provisions of Chapter 10 of Army Regulation 635-200 for the good of the
service to avoid trial by court-martial was voluntary, administratively
correct, and in compliance with applicable regulations.

3.  While the circumstances surrounding the applicant’s current medical
conditions are unfortunate, there are no provisions in Army regulations
that automatically upgrade a discharge for the sole purpose of securing
veteran’s benefits.  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 based on his
family’s potential loss of their farm and his current medical condition is
not sufficient as a basis to grant relief.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 21 March 1984, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          20 March 1987.  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

__JEA___  _BPI____  _MJF____  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 E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012837                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050905                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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