RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 January 2006
      DOCKET NUMBER:  AR20050005117


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 discharge under other than
honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was young and naïve at the
time of his discharge and did not know it would affect him later in life.
The applicant further states that he was having family and personal trouble
and he decided to take a discharge under other than honorable conditions
because he had to take care of his mother.  The applicant states that he
has never been in trouble with the law since his discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 August 1978, the date of his discharge.  The application
submitted in this case is dated 29 March 2005, and was received on 7 April
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 military records show that he initially enlisted in the
U.S. Army on 30 August 1976, for a period of 3 years.  The applicant's date
of birth is recorded as 26 March 1957.  He successfully completed basic
combat and advanced individual training and was awarded the military
occupational specialty 11E10 (armor crewman).  The highest grade held by
the applicant was specialist four/pay grade E-4.

4.  The applicant's records show that he was absent without leave (AWOL)
from 29 April 1978 and dropped from the rolls on 27 May 1978.  Records show
the applicant surrendered to military control on 19 June 1978.

5.  On 28 June 1978, the applicant was charged with being AWOL during the
period from 29 April 1978 to 21 June 1978.
6.  On 29 June 1978, the applicant voluntarily requested discharge for the
good of the service.  He acknowledged that he was making the request of his
own free will and acknowledged that he was guilty of the offense with which
he was charged.  He further acknowledged that he was afforded the
opportunity to speak with counsel prior to making this request.  In his
request, the applicant acknowledged that he was advised he may be furnished
an Under Other Than Honorable Conditions Discharge Certificate; that he
would be deprived of many or all Army benefits; that he may be ineligible
for many or all Veterans Administration benefits; and that he may expect to
encounter substantial prejudice in civilian life because of an under other
than honorable conditions discharge.

7.  The applicant submitted a statement in his own behalf with his request.
 He stated that he had previously requested discharge three times but had
been turned down.  He also stated that he wanted to be discharged due to
family problems.

8.  On 24 July 1978, the appropriate authority approved the applicant's
request for discharge for the good of the service, directed that the
applicant be reduced to private/pay grade E-1, and that he be furnished a
Discharge Certificate Under Other Than Honorable Conditions.

9.  On 28 August 1978, the applicant was discharged under the provisions of
Chapter 10 of Army Regulation 635-200 (Personnel Separations), due to
conduct triable by court martial.  He had completed 1 year, 9 months, and
29 days of active service and had 61 days of time lost.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statue of limitations.

11.  Army Regulation 635-200 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.

12.  Army Regulation 635-200 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 discharge under other than honorable
conditions should be upgraded to an honorable discharge.  The applicant
contends that he was young and naïve at the time of his discharge and did
not know it would affect him later in life.

2.  The applicant voluntarily requested discharge, admitted his guilt, and
acknowledged that he could receive an under other than honorable conditions
discharge.  The records show that he was 19 years old when he enlisted and
21 years old at the time he went AWOL.  Therefore, the evidence does not
support the applicant's contentions.

3.  The applicant contends that he was having family and personal problems
and that he took a discharge under other than honorable conditions because
he had to take care of his mother.  The applicant, in his statement
submitted with his request for discharge, contended that he had requested
to be discharged three times but was denied.

4.  The applicant has not submitted any corroborating evidence to support
his contention of family and personal problems.

5.  The records do not show any previous requests for discharge by the
applicant or the reason they were denied.  Therefore, the Board is unable
to determine the reason for his requests or the reason for the denials.

6.  The applicant's statement concerning his post service conduct is noted.
 However, good post service conduct alone is not normally sufficient for
upgrading a properly issued discharge.

7.  Rather than facing the consequences of a trial by court-martial, the
applicant submitted a request for discharge for the good of the service, in
lieu of trial by court-martial.  Although he may now believe that he made
the wrong choice, he should not be allowed to change his mind at this late
date.

8.  The ABCMR does not upgrade discharges based solely on the passage of
time.

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

10.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

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

12.  The applicant’s record of service shows 61 days of time lost.
Therefore his quality of service did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  As a result, the
applicant is not entitled to an honorable discharge.

13.  In view of the applicant's length of time lost, his record of service
is not satisfactory.  Therefore, there is no basis to upgrade his discharge
to a general discharge.

14.  The ABCMR begins its consideration of each case with the presumption
of administrative regularity.  In the absence of evidence to the contrary,
it is determined that all requirements of law and regulations were met and
the rights of the applicant were fully protected throughout the separation
process.  Further, it is determined that the type of discharge and the
reason for separation were appropriate considering all the facts of the
case.

15.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 August 1978, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 27 August 1981.  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

___rjf____  ___wdp_  ___tmr___  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.




                                  ______William D. Powers________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005117                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]