RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050003657


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |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 to a hardship or medical discharge.

2.  The applicant states, in effect, that his actions while on leave were
due to his suffering from a mental impairment and that his exemplary record
should be taken into consideration.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 June 1979.  The application submitted in this case is dated
28 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 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 enlisted in the Regular Army on 2 December 1975.  He
successfully completed basic training and advanced individual training and
was awarded military occupational specialty 11B (Infantryman).  He was
honorably discharged on 4 June 1978 for the purpose of immediate
reenlistment on 5 June 1978.

4.  A DD Form 458 (Charge Sheet), dated 4 May 1979, shows charges were
preferred against the applicant for being absent without leave (AWOL) for
the periods 11 January 1979 through 13 February 1979 and 2 March 1979
through
1 May 1979.

5.  On 10 May 1979, after consulting with counsel, the applicant submitted
a request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200 (Personnel Separations).  The
applicant indicated in his request that he understood he could be
discharged under other than honorable conditions and furnished an Under
Other Than Honorable Conditions Discharge; that he may be deprived of many
or all Army benefits; that he may be ineligible for many or all benefits
administered by the Department of Veterans Affairs; and that he may be
deprived of his rights and benefits as a veteran under both Federal and
State law.  He also acknowledged that he may expect to encounter
substantial prejudice in civilian life because of an Under Other Than
Honorable Conditions Discharge.

6.  The applicant submitted a statement on his own behalf that stated, in
effect, that he was having family problems at home and needed to be there
rather than in the Army.  He further stated that his problem of going AWOL
could have been avoided if the military treated him like a human being
rather than a number.  He concluded that he could not adapt to military
life knowing he was needed at home to care for his wife and family.

7.  The applicant's medical records are not available.

8.  On 24 May 1979, the appropriate authority approved the applicant's
request for discharge for the good of the service under the provisions of
chapter 10 of Army Regulation 635-200.  He directed that the applicant be
issued an "Under Other Than Honorable Conditions Discharge Certificate."

9.  On 14 June 1979, the applicant was discharged, with an under other than
honorable conditions discharge, by reason of "For the Good of the Service -
In Lieu of Court-Martial."  The applicant completed 3 years, 3 months, and
12 days of creditable active service with 93 days of lost time due to AWOL.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 20 August 1981, the ADRB reviewed and denied the
applicant's request for upgrade.  The ADRB unanimously voted that the
applicant's discharge was proper and equitable and that the applicant's
service during this enlistment was properly described as undesirable.

11.  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.
The request may be submitted at any time after charges have been preferred
and must include the individual's admission of guilt. An under other than
honorable discharge is normally considered appropriate.



12.  Paragraph 6-3 of Army Regulation 635-200 states that Soldiers of the
Active Army and the Reserve Components may be discharged or released
because of genuine dependency or hardship.  The regulation provides that
hardship exists when, in circumstances not involving death or disability of
a member of a Soldier’s (or spouse’s) immediate family, separation from the
Service will materially affect the care or support of the family by
alleviating undue and genuine hardship.

13.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
 Paragraph 4-3 states that an enlisted Soldier may not be referred for, or
continue, physical disability processing when action has been started under
any regulatory provision which authorizes a characterization of service of
under other than honorable conditions. An exception may be made by the
general court-martial convening authority if the disability is the cause,
or a substantial contributing cause, of the misconduct that might result in
a discharge under other than honorable conditions or other circumstances
warrant disability processing instead of alternate administrative
separation.

14.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that his last discharge should be
upgraded to hardship or medical because he had mental problems, there is no
medical evidence of record that shows he had any mental or medical
condition prior to his discharge on 14 June 1979 that would have rendered
him eligible for a medical discharge.



2.  The applicant stated in his statement with his discharge request that
he was having family problems that caused him to go AWOL.  There is no
evidence and the applicant has not provided evidence that shows he sought
assistance from his chain of command, chaplain, community support service
for his family problem to support a hardship discharge.  Therefore, there
is no basis for the argument.

3.  The applicant's prior service achievements and conduct are noteworthy.
However, prior good military service conduct alone is not a basis for
upgrading a discharge.  The applicant received an honorable discharge for
his initial period of service.  His good prior service conduct is not
sufficient to mitigate his indiscipline in the Army during his last
enlistment.

4.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 June 1979, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 13 June 1982.  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

__JS  ___  __ LGH  _  __ 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.




                                  _____ Mr. John Slone _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003657                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |14 December 2005                        |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.3500.0000                           |
|2.                      |144.9321.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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