RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 December 2005
      DOCKET NUMBER:  AR20050004715


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 23 days of lost time be removed from his
records.

2.  The applicant states, in effect, that his records indicate he had 23
days of lost time from 15 November to 7 December 1977.  However, he was
granted emergency leave for those dates to make funeral arrangements for
his mother’s funeral and burial.

3.  The applicant provides a copy of his DD Form 214 and his Certificate of
Birth.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 May 1978.  The application submitted in this case is dated
18 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.  He enlisted on 25 August 1976, for a period of 3 years and training as
a combat engineer.  He completed his one-station unit training (OSUT) at
Fort Leonard Wood, Missouri and his airborne training at Fort Benning,
Georgia, before being assigned to Fort Bragg, North Carolina.  He was
advanced to the pay grade of E-3 on 1 October 1977.

4.  On 10 January 1978, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 15 November to
7 December 1977.  His punishment consisted of a reduction to the pay grade
of   E-2, a forfeiture of pay and 30 days in the correctional custody
facility (CCF).  A review of his personnel records confirms that the
reduction in grade was effected.

5.  On 24 February 1978, NJP was imposed against him for failure to go to
his place of duty.  His punishment consisted of 7 days of extra duty.

6.  On 3 May 1978, charges were preferred against the applicant for being
AWOL from 6 March to 31 March 1978, from 3 April to 3 May 1978 and for
disobeying a lawful order from a superior commissioned officer.

7.  On 3 May 1978, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he understood the charges
that had been preferred against him, that he was making the request of his
own free will, without coercion from anyone and that he was aware of the
implications attached to his request.  He also admitted that he was guilty
of the charges against him or of lesser included offenses which authorized
the imposition of a bad conduct or dishonorable discharge.  He acknowledged
that he understood that he could receive a discharge under other than
honorable conditions and that he might be deprived of all benefits as a
result of such a discharge.  He further declined to submit a statement or
explanation in his own behalf.

6.  The appropriate authority (a major general) approved his request and
directed that he be discharged under other than honorable conditions.

7.  Accordingly, he was discharged under other than honorable conditions on
23 May 1978, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 1 year, 6 months and
10 days of total active service and had 78 days of lost time due to AWOL.
His DD Form 214 issued at the time of his discharge shows he had time lost
during the periods of 15 November to 7 December 1977. 6 March to 30 March
1978 and 3 April to 2 May 1978.

8.  Army Regulation 630-10, Absence without Leave and Desertion, provides,
in pertinent part, that commanders have the authority to reclassify AWOL to
an authorized absence or to excuse unauthorized absences as unavoidable.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s contention has been noted.  However, he has failed to
show through the evidence submitted with his application or the evidence of
record that he was granted emergency leave at the time in question.

3.  Additionally, the applicant received NJP for the period in question and
was reduced as a result of that punishment.  Therefore, absent evidence to
show that he was on official leave at the time, there is no basis to grant
his request.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 May 1978; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 22 May 1981.  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

__RTD___  __JBG___  __SWF___  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.
                                  Richard T. Dunbar
            ______________________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004715                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |267/rem lost time                       |
|1.123.0700              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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