RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          29 September 2005
      DOCKET NUMBER:  AR20050001933


      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. Wanda L. Waller               |     |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 recent rulings since his separation would have
granted him a general discharge.  He also states, in effect, that his
discharge should be upgraded to honorable or at least a general discharge
due to the following:
(1)  his ability to serve was impaired by his youth and immaturity, and his
mother’s ill health and hospitalization; (2) he requested a compassionate
reassignment but was unfairly told to forget it; (3) his nonjudicial
punishment was only an isolated offense; (4) his conduct and efficiency
ratings and proficiency marks were mostly pretty good; (5) he has been a
good citizen since his discharge; and (6) the discharge he received was too
severe compared to today’s standards.  He further states his ability to
make rational decisions was impaired due to brain damage he incurred in the
service (he contracted spinal meningitis in June 1976, he was hospitalized
and doctors performed a tracheotomy to save his life, and it caused
irreparable brain damage that changed his life).  He states that he was
discharged without the benefit of legal counsel.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 21 June 1977.  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 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.  The applicant was born on 11 March 1958.  He enlisted on 3 February
1976 for a period of 3 years.   He successfully completed basic combat
training and advanced individual training in military occupational
specialty 11C (indirect fire infantryman).

4.  On 1 May 1976, nonjudicial punishment was imposed against the applicant
for absenting himself from sentry duty.  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.

5.  On 4 February 1977, nonjudicial punishment was imposed against the
applicant for assault upon a Soldier.  His punishment consisted of a
reduction to E-1 (suspended), a forfeiture of pay, and extra duty.  On 25
March 1977, the suspended portion of the punishment was vacated.

6.  On 14 March 1977, the applicant went absent without leave (AWOL) and
returned to military control on 14 May 1977.  On 20 May 1977, charges were
preferred against the applicant for the AWOL period.

7.  On 20 May 1977, the applicant underwent a separation physical
examination and was found qualified for separation.  His Standard Form 93
(Report of Medical History) shows that he listed tonsils, broken shoulder,
and removal of a growth on his foot in item 19 (Have you ever been a
patient in any type of hospital?).  He also marked “No” for item 20 (Have
you ever had any illness or injury other than those already noted?) on the
Standard Form 93.

8.  On 23 May 1977, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might be discharged under conditions other than honorable and
furnished an undesirable (sic) discharge; that he might be ineligible for
many or all benefits administered by the Veterans Administration; that he
would be deprived of many or all Army benefits; and that he might be
ineligible for many or all benefits as a veteran under both Federal and
State law.  He also acknowledged that he might expect to encounter
substantial prejudice in civilian life because of an undesirable (sic)
discharge.  He elected to make a statement in his own behalf.  In summary,
he stated that he wanted to be discharged because he had difficulty
adjusting to the military, that he had problems with fellow Soldiers,
family problems, and that he felt he was no longer a productive Soldier.


9.  On 9 June 1977, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

10.  Accordingly, the applicant was discharged under other than honorable
conditions on 21 June 1977 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial.  He had served a total of 1 year, 1 month and 22 days of
creditable active service with 86 days of lost time due to AWOL.
11.  There is no evidence in the available records which shows the
applicant requested a compassionate reassignment.

12.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

13.  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,
submit a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
A discharge under other than honorable conditions (previously characterized
as “undesirable”) is normally considered appropriate.

14.  Army Regulation 635-200, currently in effect, 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 submit a request for discharge in lieu of trial by court-
martial.  The request may be submitted at any time after court-martial
charges have been preferred.  A discharge under other than honorable
conditions is normally considered appropriate.

15.  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.

16.  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.  Age is not a sufficiently mitigating factor.  The applicant was almost
18 years old when he enlisted and he successfully completed basic combat
training and advanced individual training.

2.  There is no evidence in the applicant’s service personnel records which
shows that he requested a compassionate reassignment.

3.  Although the applicant contends that his nonjudicial punishment was an
isolated minor offense, evidence of record shows nonjudicial punishment was
imposed against him on two occasions for absenting himself from sentry duty
and assault.

4.  Good post-service conduct alone is not a basis for upgrading a
discharge.

5.  The evidence of record does not support the applicant's contention that
under current standards he would not have received the type of discharge he
did.  The current governing regulation states that an individual discharged
in lieu of trial by court-martial would normally be furnished a discharge
under other than honorable conditions.

6.  Although the applicant contends that his ability to make rational
decisions was impaired due to brain damage he incurred in the service,
medical evidence of record shows that he was found qualified for
separation.  The applicant did not mention he was hospitalized for spinal
meningitis or that he had brain damage on the Standard Form 93, dated 20
May 1977.

7.  Although the applicant contends that he was discharged without the
benefit of legal counsel, evidence of record shows that he consulted with
counsel on
23 May 1977 prior to voluntarily requesting discharge for the good of the
service.
8.  The applicant’s record of service included two nonjudicial punishments
and 86 days of lost time.  As a result, his record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  Therefore, the applicant's record
of service is insufficiently meritorious to warrant a general discharge or
honorable discharge.

9.  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.

10.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

11.  Records show the applicant should have discovered the alleged
injustice now under consideration on 21 June 1977; therefore, the time for
the applicant to file a request for correction of any injustice expired on
20 June 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

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                 |AR20050001933                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050929                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19770621                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service in lieu of  |
|                        |trial by court-martial                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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