RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:          30 August 2005
      DOCKET NUMBER:  AR20050004526


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|Mr. Paul M. Smith                 |     |Chairperson          |
|Ms. Yolanda Maldonado             |     |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 that his under other than honorable conditions
discharge be upgraded.

2.  The applicant states in line 17 (Remarks of his DD Form 149
(Application for Correction of Military Record), dated 19 March 2005, that
he spent eight years in the Regular Army and is now 53 years old.  He
further states that he would like to get his discharge upgraded in order to
be eligible for veteran benefits.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 February 1980, the date of his separation from active duty.
The application submitted in this case is dated 19 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 limitation 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 military records show that he enlisted in the New York
Army National Guard (NYARNG) for a period of 6 years on 26 September 1972.

4.  The applicant was then ordered to active duty for training on 26
January 1973. He completed basic training and advanced individual training
and was awarded military occupational specialty 63B20 (Wheel Vehicle
Mechanic).

5.  On 27 July 1973, the applicant was honorably discharged from active
duty and transferred to NYARNG to complete his remaining service
obligation.

6.  The applicant's personnel records contain a letter notification from
the 1st Battalion, 174th Infantry of the NYARNG, dated 4 February 1978.
The letter notified the applicant that, he was charged with two periods of
unexcused absence for failing to attend the unit training assembly (UTA)
conducted by his unit.  The letter also informed him that if he accumulates
5 unexcused absences within a one year period, he will be ordered to active
duty for a period of 24 months or less.
7.  The applicant's personnel records contain four additional letters of
notification from the 1st Battalion, 174th Infantry of the NYARNG, which
showed that the applicant was charged with two periods of unexcused absence
in each letter for failing to attend the UTA on 5 February, and 4 March
1978.

8.  The applicant's personnel records contain a letter from the 1st
Battalion, 174th Infantry of the YARNG, dated 20 March 1978.  The letter of
notice for Unsatisfactory Participation and Right to Appeal Involuntary
Active Duty charged the applicant with six unexcused absences within a one
year period and failure to submit a request to be excused for the periods
of unexcused absences.  Further, in view of the six unexcused absences the
applicant's commanding officer was requested that the applicant be
involuntarily ordered to active duty.

9.  Headquarters, First United States Army, Fort George G. Meade, Maryland,
Orders 119-8, dated 22 June 1978, ordered the applicant to active duty
(involuntary) with a report date of 5 August 1978, at Fort Dix, New Jersey,
in rank of private/pay grade E-2 with a service commitment of 16 months and
13 days.

10.  A National Guard Bureau Form 22 (Report of Separation and Record of
Service), effective 4 August 1978, shows that the applicant received a
general discharge due to unsatisfactory participation and was involuntarily
ordered to active duty at the U. S. Army Reception Station, Fort Dix, New
Jersey, in accordance with Army Regulation 135-91 (Service Obligations,
Methods of Fulfillment, Participation Requirements, and Enforcement
Procedures).

11.  On 9 March 1979, nonjudicial punishment was imposed against the
applicant for failing to go at the time prescribed to his appointed place
of duty.  His punishment consisted of extra duty for 14 days.

12.  On 12 July 1979, nonjudicial punishment was imposed against the
applicant for being AWOL from 3 July 1979 through 6 July 1979 from his unit
and willfully disobeying a lawful order from his superior noncommissioned
officer to get a haircut. His punishment consisted of forfeiture of $109.00
pay (suspended
60 days) and confinement for 15 days, effective upon entry into the
confinement facility.

13.  On 25 September 1979, nonjudicial punishment was imposed against the
applicant for being AWOL from 16 August 1979 through 18 August 1979 from
his unit and for failing to go to formation on 5 September 1979.  His
punishment consisted of forfeiture of $50.00 pay and confinement for 30
days, effective upon entry into the confinement facility.


14.  The applicant's personnel records contain a DA Form 4187, dated 23
October 1979, filed by Company C, 2d Battalion, 39th Infantry, Fort Lewis,
Washington.  This form shows that the applicant status changed from present
for duty to AWOL on 20 October 1979.

15.  A DA Form 3836 (Notice of Return of US Army Member from Unauthorized
Absence) shows that the applicant surrendered himself to military
authorities at Fort Lewis, Washington, on 7 January 1980.

16. The remaining facts and circumstances regarding the applicant's
separation are not in the available records.

17.  On 4 February 1980, Headquarters, 9th Infantry Division, Fort Lewis,
Washington, issued Orders 24-841, to reassign the applicant to the U.S.
Army Separation transfer point, Fort Lewis, Washington, for separation
processing.  These orders further show that the applicant was to be
discharged from the Regular Army on 8 February 1980.

18.  On 4 February 1980, Headquarters, 9th Infantry Division, Fort Lewis,
Washington, issued Orders 24-841, determined that the applicant was to be
reduced in grade from private, E-2 to private, E1 effective 31 January
1980.

19.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) with an effective date of 8 February 1980, shows that he was
separated under the provisions of chapter 10 of Army Regulation 635-200 and
that his character of service was under other than honorable conditions.
The applicant had 1 year, 3 months and 10 days of service and had with
approximately 76 days of lost time due to AWOL.  The highest pay grade he
attained was private/pay grade E-2.

20.  There is no indication in the available records that the applicant
applied to the Army Discharge Review Board for a discharge upgrade within
its 15-year statute of limitations.

21.  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.  A
discharge under other than honorable condition was normally considered
appropriate.

22.  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.

23.  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.

24.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for an AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded in order
to be eligibility for veteran benefits.

2.  Lacking evidence to the contrary, the applicant's request for
separation under 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.  There is no evidence which shows the applicant was not properly and
equitably discharged in accordance with the regulations in effect at the
time, that all requirements of law and regulations were not met, or the
rights of the applicant were not fully protected throughout the separation
process.  Absent such evidence, regularity must be presumed in this case.

4.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.




This misconduct and lost time also renders his service unsatisfactory.
Therefore, he is not entitled to either a general discharge or an honorable
discharge.

5.  The applicant's record of service did not meet the standards of
acceptable conduct and performance of duty for Army personnel. Therefore,
he is not entitled to an honorable discharge.

6.  The applicant’s record of service included AWOL charges for 76 days of
lost time. As a result, his service was not satisfactory.  Therefore, the
applicant's record of service is insufficiently meritorious to warrant a
general discharge.

7.  The ABCMR does not grant requests for upgrade of discharges solely for
the purpose of making the applicant eligible for veterans or medical
benefits.

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

__PMS___  _LH___  __YM____  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.





             _Paul M. Smith_____
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004526                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/02/08                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Ch10,                                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Director                                |
|ISSUES         1.       |A                                       |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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