RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 July 2005
      DOCKET NUMBER:  AR20050003668


      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. Stacy R. Abrams               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Robert J. Osborn, III         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 an honorable discharge.

2.  The applicant states, in effect, that he did not fully understand the
importance and the adverse effect this type of discharge would have on his
life.

3.  The applicant also states, in effect, that he has learned from his
mistakes and he has never been in any other trouble.

4.  The applicant does not provide any evidence on his behalf.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 2 April 1981, the date of his separation from active duty.  The
application submitted in this case is dated 21 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's service personnel records show he enlisted in the
Regular Army on 30 May 1979 for a period of 3 years.  He successfully
completed basic and advanced individual training and was awarded the
military occupational specialty 76W (petroleum supply specialist).

4.  On 5 September 1979, nonjudicial punishment was imposed against the
applicant for dereliction in the performance of his duties in that he
failed to remain awake on bay guard.  His punishment consisted of
forfeiture of $97.00 for one month, extra duty and restriction in the
company area for 14 days.




5.  On 5 November 1979, nonjudicial punishment was imposed against the
applicant for failure to go to the appointed place of duty on
24 and 26 October 1979.  His punishment consisted of forfeiture of the
$97.00 (suspended for 90 days), extra duty for 7 days and restriction for
to the company for 14 days (suspended for 90 days.

6.  On 13 November 1979, suspension of the $97.00 forfeiture for 90 days,
and suspension of seven days extra duty and restriction for 14 days was
vacated and duly executed.

7.  Division Support Command [Fort Campbell, Kentucky] Summary Court-
Martial Order Number 35, dated 30 November 1979, shows the applicant was
convicted by Summary Court-Martial for being AWOL for the period 9 November
1979 through 13 November 1979.  His punishment consisted of reduction from
private/pay grade E2 to private/pay grade E1 and hard labor without
confinement for 45 days.

8.  Division Support Command [Fort Campbell, Kentucky ] Summary Court-
Martial Order Number 20, dated 27 June 1980, shows the applicant was
convicted by Summary Court-Martial for being AWOL for the period 2 June
1980 through 16 June 1980.  His punishment consisted of forfeiture of
$224.00 for one month and confinement at hard labor for 30 days.

9.  Block 35 (Record of Assignments) of applicant's DA Form 2-1 (Personnel
Qualification Record) shows that the applicant was dropped from the rolls
for desertion on 6 November 1980.

10.  On 8 December 1980, the lieutenant colonel in command of the 240th
Quartermaster Battalion [Fort Lee, Virginia] recommended trail by Special
Court-Martial empowered to adjudge a bad conduct discharge.

11.  A DD Form 458 (Charge Sheet), dated 10 December 1980 shows applicant
was referred to trail by Special Court-Martial for being AWOL from
24 September 1980 through 29 September 1980 and from 6 October 1980 through
7 November 1980.

12.  On 2 January 1981, the major general in command of Fort Lee, Virginia
directed the applicant be tried by a Special-Court-Martial empowered to
adjudge a bad conduct discharge.

13.  The applicant went AWOL again on 8 January 1981 and returned to
military control on 18 February 1981.
14.  Block 35 (Record of Assignments) of applicant's DA Form 2-1 shows that
the applicant was dropped from the rolls for desertion on 10 January 1981.

15.  Additional charges on a DD Form 458 (Charge Sheet) shows applicant was
referred to trail by Special Court-Martial for being AWOL 8 January 1981
through 18 February 1981.

16.  On 20 February 1981, the lieutenant colonel in command of the 240th
Quartermaster Battalion [Fort Lee, Virginia] recommended trail by Special
Court-Martial empowered to adjudge a bad conduct discharge.

17.  On 25 February 1981, the colonel in command of the US Army
Quartermaster Brigade [Fort Lee, Virginia] recommended trail by Special
Court-Martial empowered to adjudge a bad conduct discharge.

18.  The applicant's service personnel records show he consulted with
counsel and requested a discharge under the provision of chapter 10, Army
Regulation 635-200, in lieu of trail by court martial.

19.  The applicant indicated in his request that he understood he could be
discharged under conditions other than honorable and furnished an Under
Other Than Honorable Discharge Certificate; that he may be deprived of many
of all Army benefits; 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 a
discharge under other than honorable conditions.

20.  On 4 March 1981, the applicant elected to submit a statement in his
own behalf.  In his statement he apologized for his conduct and indicated
that it would be best for him to get out of active service because of
family and personal problems.

21.  On 19 March 1981, the captain in command of the 267th Quartermaster
Company [Fort Lee, Virginia] recommended a discharge for the good of the
service under other than honorable conditions.

22.  On 20 March 1981, the lieutenant colonel in command of the 240th
Quartermaster Battalion [Fort Lee, Virginia] recommended an under other
than honorable conditions discharge.

23.  On 20 March 1981, the commander of US Army Quartermaster Brigade [Fort
Lee, Virginia] recommended a under other than honorable conditions
discharge.
24.  On 20 March 1981, the acting commander of US Army Quartermaster Center
and Fort Lee, Virginia approved the recommendation for discharge under the
provisions of chapter 10 of Army Regulation 635-200 by reason of for the
good of the service.  He also directed that the applicant be issued an
Under Other Than Honorable Conditions Discharge Certificate.

25.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged on 2 April 1981 under the
provisions of chapter 10 of Army Regulation 635-200 for the good of the
service.  He had served 1 year 4 months and 7 days of active service and
had over 176 days of lost time.

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

27.  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.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

28.  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.

29.  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 under other than honorable condition
discharge should be upgraded to an honorable discharge because he has
learned from his mistakes and he has never been in trouble since the end of
his military service.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

3.  Military record show the applicant's administrative separation was
accomplished in compliance with applicable regulation with no indication of
procedural errors that would tend to jeopardize his rights.

4.  Records show that the applicant had eight offenses of AWOL totaling
over 176 days.  These offenses are contrary to acceptable standards of
conduct and performance normally expected of Army personnel.  Therefore,
based on his extensive record of indiscipline, the applicant is not
entitled to an honorable discharge.

5.  The applicant's service records show three nonjudicial punishments, two

courts-martial and over 176 days lost.  Based on the applicant's
indiscipline, his military service is not considered satisfactory.
Therefore, he is not entitled to a general discharge.

6.  The applicant contends that his discharge should be upgraded because he
was not aware of the importance and the effects of an under other than
honorable discharge.  Evidence of record shows the applicant acknowledged
in his own hand the effects of a discharge under other than honorable
conditions.  Therefore his contention is contrary to the evidence in this
case.

7.  The applicant also contends that his discharge should be upgraded based
on his good post-service conduct.  However, he has not provided evidence of
good post service-conduct.  Furthermore, good post-service, by itself, is
not sufficient in this case to overcome the applicant's misconduct while in
the Army.

8.  Records show upon notification of separation and consultation with
counsel, the applicant submitted a statement in his own behalf and
indicated it would be best for him to get out of active duty because of
family and personal problems.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 April 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
1 April 1984.  However, the applicant did not file within the 3-year statue
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

___BKK_  ___JI____   __RJO__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.
                                  ______ John Infante________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050003668                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050721                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19810402                                |
|DISCHARGE AUTHORITY     |AR635-200                               |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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