RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2005
      DOCKET NUMBER:  AR20050004051


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Kenneth W. Lapin              |     |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 his under other than honorable conditions
discharge be upgraded to honorable.  He also requests that his separation
code be changed from "KFS" to "LBK", that his reenlistment code be changed
from "RE-3, 3B, 3C" to "1B", and his pay grade from "E1" to "E4."

2.  The applicant states, in effect, that his discharge should be upgraded
to honorable and be affirmed.

3.  The applicant provides a copy of a Distinguished Trooper Award from the
82nd Airborne Division, dated 2 October 1980; a Letter of Appreciation from
the U.S. Army Transportation School, dated 26 April 1982; and two Letters
of Commendation from the 329th Transportation Company, dated 2 August 1982
and 18 March 1983 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 October 1984, the date of his separation from active duty.
The application submitted in this case is dated 10 March 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 reenlisted in the Army on 2 March 1982 for a period of
four years.  After completion of basic and advanced individual training, he
was awarded military occupational specialty 61B10 (Watercraft Operator).

4.  The applicant's service records contain a DA Form 4187 (Personnel
Action), dated 20 May 1983, which shows the applicant was in an absent
without leave (AWOL) status effective 18 May 1983.

5.  A DA Form 4187, dated 13 September 1984, shows the applicant
surrendered himself at Fort Hamilton, New York, on 10 September 1984.

6.  The applicant's service records contain a Personnel Control Facility
Interview Sheet, which shows on 10 September 1984, the applicant stated he
went AWOL due to problems with his commander and first sergeant.  This form
also shows that on 11 September 1984, the recommended action was to
discharge the applicant under the provisions of chapter 10 and furnish an
under other than honorable conditions discharge.

7.  The applicant's service records contain DD Form 458 (Charge Sheet),
dated 11 September 1984, which charged the applicant with AWOL for the
period 18 May 1983 through 10 September 1984 [481 days].

8.  The applicant's service records contain an undated form which shows the
applicant consulted with legal counsel and was advised of the basis for the
contemplated trial by court-martial that provided for a punitive discharge,
the effects of a request for discharge for the good of the service and of
the rights available to him.  Subsequent to this counseling, he voluntarily
requested discharge under the provision of Army Regulation 635-200, chapter
10, for the good of the service, in lieu of trial by court-martial.  In his
request for discharge, the applicant indicated that he had not been coerced
into requesting discharge and had been advised of the implications that
were attached to the request.  He further acknowledged that he could be
discharged under other than honorable conditions and be furnished an
Undesirable Discharge Certificate.  He also stated that he understood that
as a result of receiving such a discharge, he may be deprived of many or
all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.

9.  On 18 September 1984, the applicant's commander recommended that the
applicant’s request for discharge be approved and that he be furnished an
Under Other Than Honorable Conditions Discharge Certificate.

10.  On 26 September 1984, the major general in command of the U.S. Army
Training Center and Fort Dix approved the applicant’s request for discharge
and directed that he be issued a Discharge Certificate Under Other Than
Honorable Conditions and reduction to the lowest grade.

11.  The applicant's DD Form 214 shows that he was discharged on 19 October
1984, under the provisions of chapter 10 of Army Regulation 635-200, for
the good of the service, in the pay grade of E-1, with the reenlistment
code of RE-3, 3B, 3C, and issued a Discharge Certificate Under Other Than
Honorable Conditions.  He had served 1 year, 3 months and 26 days of net
active service.
12.  The applicant applied to the Army Discharge Review Boards Agency
(ADRB) to upgrade his discharge.  On 18 June 1997, the ADRB reviewed and
denied the applicant's request for upgrade.  The ADRB determined that the
applicant's discharge was proper and equitable and that the discharge was
properly characterized as under other than honorable conditions.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
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.  A discharge under other than
honorable conditions is normally considered appropriate.

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment
Program) covers eligibility criteria, policies and procedures for
enlistment and processing into the Regular Army (RA) and the U.S. Army
Reserve.  Chapter 3 of that regulation prescribes basic eligibility for
prior service applicants for enlistment.  That chapter includes a list of
armed forces RE codes, including RA RE codes.  RE 1 and 2 permit immediate
reenlistment if all other criteria are met. RE-3, 3B, and 3C apply to
persons not qualified for continued Army service, but the disqualification
is waivable.

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating Soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  It states, in
pertinent part, that the SPD code of KFS is the appropriate code to assign
to Soldiers who separated under the provisions of chapter 10 of Army
Regulation 635-200 for the good of the service in lieu of trial by court-
martial.  The SPD/RE Code Cross Reference Table included in the regulation
stipulates that the RE code assignment will be based on the Department of
the Army directive authorizing separation.

16.  Army Regulation 635-200, paragraph 1-28, provides that when a member
is to be issued a discharge under other than honorable conditions, the
convening authority will direct his immediate reduction to the lowest
enlisted grade.




17.  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.

18.  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.

19.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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.  The applicant contends that his Discharge Certificate Under Other Than
Honorable Conditions should be upgraded to honorable.

2.  The evidence of record confirms that the applicant was charged with an
offense that is punishable under the Uniform Code of Military Justice with
a punitive discharge.  After consulting with defense counsel, the applicant
voluntarily requested discharge from the Army in lieu of trial by court-
martial.





3.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

4.  The applicant also contends he is entitled to changes in his separation
code, his bar to reenlistment and restoration of his pay grade to E-4.

5.  Discharge under Chapter 10 requires an admission of guilt to the
offenses charged.  The separation code and reenlistment codes assigned to
the applicant were the proper codes for members separating for commission
of a serious offense.  The reduction to the lowest pay grade is the proper
procedure when individuals are issued a discharge under other than
honorable conditions.  Therefore, the applicant's contentions are not
consistent with Chapter 10 procedures and the evidence of record in this
case.

6.  Notwithstanding the letters attesting to instances of good performance,
the applicant’s record of service, did not meet the standards of acceptable
conduct and performance of duty for Army personnel in view of his
indiscipline.  Therefore, he is not entitled to an honorable discharge.

7.  The period of service under consideration includes 481 days of AWOL and
separation with a Discharge Certificate Under Other Than Honorable
Conditions. Therefore, this period of service is unsatisfactory and does
not merit a general discharge.

8.  Accordingly, the type of discharge directed, the separation code, the
reenlistment codes, and pay grade were appropriate considering all the
facts of the case.

9.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.






10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 18 June 1997.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 17 June 2000.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_JNS__  __KWL___  __LDS___   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.




                                     __John N. Slone___
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004051                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051018                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1984/10/19                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000/Discharge                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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