RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 OCTOBER 2005
      DOCKET NUMBER:  AR20050003636


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Hubert Fry                    |     |Member               |
|     |Mr. Robert Rogers                 |     |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 records be corrected by upgrading his
discharge, and makes no additional statements.

2.  The applicant makes no additional statements.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on   8 November 1979.  The application submitted in this case is
dated 3 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.  Documents in the applicant’s records show he enlisted and entered
active duty on 5 October 1978, for a period of 4 years.

4.  On 3 April 1979 the applicant was punished under Article 15 of the
Uniform Code of Military Justice (UCMJ) for being absent without leave from
16 January 1979 to 25 March 1979.

5.  Documents in the applicant’s records show he was AWOL from 1 August
1979 to 14 September 1979, and was pending court-martial action.

6.  The facts and circumstances surrounding the applicant’s discharge
proceedings are not in the available records, however, on 8 November 1979,
he was discharged under other than honorable conditions, under the
provisions of AR 635-200, chapter 10.  His DD From 214 (Certificate of
Release or Discharge from Active Duty) indicates he had 1 year, 1 month and
4 days of creditable service and 105 days of lost time.


7.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred, submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an under other than honorable conditions
discharge.

8.  Army Regulation 635-200 also states that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

9.  There is no indication the applicant applied to the Army Discharge
Review Board within the prescribed 15 year time limit.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  The applicant would have voluntarily requested separation under Army
Regulation 635-200, Chapter 10, for the good of the service, to avoid trial
by court-martial. The character of the discharge is commensurate with his
overall record of military service.

3.  In order to justify correction of a military record the applicant must
show, 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.

4.  In view of the foregoing, there is no basis for granting the
applicant's request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 November 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
7 November 1982.  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

__BE ___  __HF  ___  __RR ___  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.




                                  ______Barbara Ellis________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003636                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051019                                |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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