RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 July 2005
      DOCKET NUMBER:  AR20050003178


      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. Antoinette Farley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 a general discharge.

2.  The applicant, in effect, states that his commanding officer threatened
to bust him down to a private.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 July 1984, the date of his separation.  The application
submitted in this case is dated 15 February 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's service records show that he initially enlisted in the
Regular Army on 4 December 1979.  He completed basic combat training and
advanced individual training and was awarded Military Occupational
Specialty (MOS) 11B10 (Infantryman).  He was then reassigned for Basic
Airborne Training to Fort Benning, Georgia.  Upon completion of his
training he was assigned to Headquarters & Headquarters Company, 1st
Battalion (ABN) of the 504 Infantry, Fort Bragg, North Carolina, for duty.

4.  Evidence of record shows that on 13 October 1982, Headquarters,
82D Airborne Division, Fort Bragg, issued Orders Number 194-40 honorably
discharging the applicant in the rank of specialist/pay grade E-4 on
13 October 1982, for the purpose of immediate reenlistment.

5.  The applicant’s service personnel records show that, he reenlisted in
the Regular Army for a period of 4 years on 14 October 1982.

6.  Evidence of record shows that Headquarters, 82d Airborne Division, Fort
Bragg, North Carolina, issued Orders Number 245-103, dated
          30 December 1982, effectively promoting the applicant to the rank
of sergeant/pay grade E-5 on 4 December 1982.

7.  The applicant's military service record contains a DA Form 4187
(Personnel Action), dated 17 April 1984, filed by A Company, 1st Battalion
(ABN), 504th Infantry, Fort Bragg.  This form shows that the applicant was
placed in an absent without leave (AWOL) status on 16 April 1984.

8.  The applicant's military service record contains a DA Form 4187, dated
16 May 1984, filed by A Company, 1st Battalion (ABN), 504th Infantry, Fort
Bragg.  This form shows that the applicant duty status was absent without
leave which was changed to a status of dropped from the rolls.

9.  The applicant's military service record contains a Fort Dix Personnel
Control Facility [FDPCF] Form 617 (AWOL-Deserter Verification Sheet), dated
23 May 1984, which shows that that applicant surrendered to military
authorities on 22 May 1984 at Fort Dix, New Jersey.

10.  The facts and circumstances surrounding the applicant's discharge
under the provisions of chapter 10, Army Regulation 635-200 (Personnel
Separations – Enlisted Personnel), in lieu of trial by court-martial were
not in the available records.

11.  The applicant's military service record contains a form (Medical
Examination for Separation/Statement of Option) letter from Company A, US
Army Training Center, Fort Dix, dated 23 May 1984.  This form shows that
the applicant indicated by signing his name to the form that he did desire
to have a chapter 10 separation medical examination.  The letter further
states in essence that, when a service member voluntarily requests
separation under chapter 10, or chapter 14, Army Regulation 635-200, and
also requests a medical examination, it will be accomplished expeditiously,
without regard to the time constraints otherwise applicable to voluntary
examinations.  The letter also states that a medical examination is also
required no later than 72 hours prior to the anticipated date of
separation.

12.  Evidence of record shows that the applicant submitted a DA Form
31 (Request and Authority for Leave), dated 23 May 1984, which shows that
he requested to be granted indefinite excess leave while awaiting
processing for discharge.  This form shows that the applicant understood
that requesting excess leave shows that he completely understood all the
legal and social ramifications of the type of discharge and what it would
mean in his future.  The applicant authenticated this form in his own hand.
 He further acknowledges that excess leave in this case was granted per the
applicants request and for the convenience of the government.  The form
also shows that the applicant desired to be discharged in absentia.

13.  Evidence of record shows that, on 5 July 1984, US Army Training
Center, Fort Dix, New Jersey, issued Orders Number 187-79 to effectively
reduce the applicant's rank from sergeant/pay grade E-5 to private/pay
grade E-1 and to reassign the applicant to US Army Separation Transfer
Point, Fort Dix, effective 19 July 1984 for separation processing.  The
orders also authorized the applicant to be discharged in absentia under the
provision of Army Regulation 635-200 as of the date of his reassignment.

14.  The applicant's military service record contains a FDTRF-Form Letter,
dated 19 July 1984, from Headquarters, U.S. Army Training Center, Fort Dix,
New Jersey.  The form shows that the applicant was issued a letter of
debarment from reentering or being found within the limits of the US
Military Reservation, Fort Dix, New Jersey.  This form also shows that the
applicant would be discharged in absentia and that his discharge documents
would be mailed to home address.

15.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was separated on 19 July 1984, under the
provisions of chapter 10 of Army Regulation 635-200 for the good of the
service in lieu of trial by court-martial and furnished an Under Other Than
Honorable Conditions Discharge Certificate.  The applicant's DD Form 214
also shows that he had served 1 year, 8 months and 1 day with approximately
55 days of lost time due to AWOL and confinement.

17.  There is no evidence the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separation) sets forth the basic authority for the separation of enlisted
personnel.  Chapter 10 of this regulation provides, in 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 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.

19.  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.

20.  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 to a
general discharge because his commanding officer threatened to bust him
down to a private.

2.  Contrary to the applicant's contentions, the evidence of record shows
that he voluntarily requested separation under the provisions of chapter
10, Army Regulation 635-200 in lieu of trial by court-martial.

3.  Discharge under Chapter 10 requires an admission of guilt to the
offenses charged and usually results in a discharge under other than
honorable conditions.  Therefore, the applicant's contention is not
consistent with Chapter 10 procedures and the evidence of record in this
case.

4.  In the absence of evidence to the contrary, it is presumed that all
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.

5.  The applicant's record of service shows that his quality of service did
not meet the standards of acceptable conduct and performance of duty for
Army personnel during his current enlistment.  Therefore, he is not
entitled to an honorable discharge.

6.  The applicant’s record of service included a period of AWOL for
approximately 55 days of lost time and/or confinement.  As a result, his
service was not satisfactory.  Therefore, the applicant's record of service
is insufficiently meritorious to warrant a general discharge.

7.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on the date of his separation 19 July
1984; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 18 July 1987.  However, 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

___LB_   __WDP__  _ _JBG___  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.



                                        __William D. Powers__
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2005003178                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/07/28                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1984,07,19                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Ch10                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Director                                |
|ISSUES         1.       |A144.0000                               |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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