RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2005
      DOCKET NUMBER:  AR20050004277


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, in effect, that his under other than honorable
conditions discharge be upgraded to an honorable or general discharge.

2.  The applicant states, in effect, that his overall service was not given
due consideration.  The applicant continues that he was young and did not
understand what he was doing.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), with a separation date of 8 July
1980.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 July 1980, the date of his discharge from active duty.  The
application submitted in this case is dated 14 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's records show that he was born on 16 June 1959.  The
applicant enlisted in the Regular Army for three years on 23 March 1979.
He completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B (Infantryman).  The applicant's
records show he was assigned to Company C, 2nd Battalion, 325th Infantry,
Fort Bragg, North Carolina, effective 17 August 1979.

4.  A DA Form 4187 (Personnel Action), dated 16 January 1980, shows the
applicant went absent without leave (AWOL) on 16 January 1980.

5.  A DA Form 4187, dated 20 February 1980, shows the applicant was dropped
from the rolls of the organization on 15 February 1980,

6.  A DA Form 4187, dated 1 May 1980, shows the applicant was apprehended
by civilian authorities and returned to military control on 25 April 1980.

7.  The applicant’s records show that he was assigned to the Special
Processing Company, U.S. Army Personnel Control Facility, Fort Knox,
Kentucky, effective 25 April 1980.

8.  A DD Form 458 (Charge Sheet) shows that, on 1 May 1980, the first
lieutenant in command of the Special Processing Company, U.S. Army
Personnel Control Facility, Fort Knox, preferred charges against the
applicant for being AWOL during the period 16 January 1980 through 25 April
1980.

9.  On 2 May 1980, the applicant requested a discharge for the good of the
service in lieu of trial by court-martial under the provisions of chapter
10 of Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations).  Applicant's legal counsel certified that he had advised the
applicant of the basis for the contemplated trial by court-martial under
circumstances which could lead to a bad conduct or dishonorable discharge,
of the effects of the request for discharge, and the rights available to
the applicant.

10.  The applicant signed his request for discharge which showed that he
was making the request under his own free will and acknowledged guilt to
the offenses charged; that he was afforded the opportunity to speak with
counsel; that he was advised he may be furnished a separation Under Other
Than Honorable Conditions; that he may be deprived of many or all Army
benefits; that he may be ineligible for many or all Veterans Administration
benefits; that he may be deprived of his rights and benefits as a veteran
under both Federal and State law; and that he may expect to encounter
substantial prejudice in civilian life because of an under other than
honorable discharge.

11.  On 19 May 1980, the first lieutenant in command of the Special
Processing Company, U.S. Army Personnel Control Facility, Fort Knox,
recommended the applicant for separation from the U.S. Army under the
provisions of chapter 10 of Army Regulation 635-200.  His recommendation
included a DA Form 3822-R, Report of Mental Status Evaluation, dated 2 May
1980, which shows the applicant was psychologically clear and had the
mental capacity to understand and participate in board proceedings.

12.  On 23 May 1980, the commander of the U.S. Army Armor Center and Fort
Knox, approved the applicant’s request for discharge under the provisions
of chapter 10 of Army Regulation 635-200 and directed that the applicant be
reduced to the rank of private/pay grade E-1 and issued a discharge under
other than honorable conditions.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged on 8 July 1980 in accordance with
the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by
court-martial.  Applicant served 1 year and 7 days of active service.

14.  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.

15.  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.

16.  Army Regulation 635-200, paragraph 3-3, 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under conditions other than
honorable should be upgraded because his overall service was not given due
consideration.  The applicant continues that he was young and did not
understand what he was doing.

2.  The applicant’s request for separation under the provisions of chapter
10 of Army Regulation 635-200 for the good of the service to avoid trial by
court-martial was voluntary, administratively correct, and in compliance
with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in
accordance with the regulations in effect at that time, all requirements of
law and regulations were met, and the rights of the applicant were fully
protected throughout the separation process.

4.  The applicant’s service record shows that he was AWOL from the Army for
100 days and dropped from the rolls of the organization.  The applicant
provided no evidence, and there is no evidence in the available records,
that supports the applicant’s contention that his overall service was not
given due consideration at the time he was released from military service.

5.  The applicant’s record of service, which shows completion of only 12
months of his 36-month enlistment and 100 days of AWOL, did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Thus, the applicant is not entitled to an honorable discharge.
Furthermore, this service was not satisfactory.  Therefore, the applicant
is also not entitled to a general discharge.

6.  The applicant contends that he was young and did not understand what he
was doing.  Records show that the applicant was over 20 years old at the
time of he went AWOL and that he was nearly 21 years old at the time of his
voluntary request for discharge under the provisions of chapter 10 of Army
Regulation  635-200.  There is no evidence that indicates that the
applicant was any less mature than other Soldiers of the same age who
successfully completed military service.  In addition, at the time of his
request for discharge, the applicant was found to have the mental capacity
to understand the separation proceedings.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 July 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
7 July 1983.  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

________  ________  ________  GRA7NT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LDS___  ___LGH_  ___PHM__  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.




                                  _____Linda D. Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004277                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050726                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19800708                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |Discharge in Lieu of Trial by           |
|                        |Court-Martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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