RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050005719


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Bernard Ingold                |     |Chairperson          |
|     |Mr. Donald Steenfott              |     |Member               |
|     |Mr. Edward Montgomery             |     |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
(UOTHC) discharge be upgraded to an honorable discharge.

2.  The applicant states he was not right in the head after his accident in
1979.  He states that he lost his wife and his mind and now he has gotten
his mind back.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 26 October 1979.  The application submitted in this case is
dated 8 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 enlisted in the Regular Army on 4 June 1976 for a period
of three years.  He completed basic combat training at Fort Dix, New Jersey
and was further assigned to Fort Benning, Georgia, for advanced individual
training (AIT).  Upon completion of AIT, he was awarded military
occupational specialty 11B (Infantryman).  He was reassigned to Fort
Campbell, Kentucky as an assistant gunner.  He was advanced to private
first class on 5 February 1977.

4.  The applicant's personnel records contain a DA Form 2173 (Statement of
Medical Examination and Duty Status) dated 3 October 1977 which indicates
the applicant was hit by a car on 15 September 1977 and he was admitted to
the U.S. Army Hospital at Fort Campbell, Kentucky.  He was diagnosed as
having a contusion of his right calf.  The details of the accident
indicated the applicant fell in the path of the oncoming vehicle when he
attempted to pick up an object in the road and he had been drinking prior
to the accident.

5.  On 25 April 1978, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being absent
without leave (AWOL) from 21 April 1978 through 24 April 1978.  His
punishment consisted of reduction to the grade of private E-2 (suspended
until 25 July 1978) and to be placed in the Correctional Custody Facility
for a period of 30 days, upon acceptance by that facility.

6.  On 20 June 1978, the applicant accepted nonjudicial punishment under
Article 15 for being AWOL from 4 May 1978 through 4 June 1978.  His
punishment consisted of reduction to the grade of private E-1 (suspended
for 60 days) and a forfeiture of $50.00 pay per month for 2 months.

7.  The applicant accepted nonjudicial punishment under Article 15 again on
25 October 1978 for being AWOL from 6 September 1978 through 12 September
1978.  His punishment consisted of 7 days extra duty to begin on 25 October
1978 for 2 hours per day.

8.  The applicant signed a Medical History form on 12 October 1978 and
indicated that he had been treated for severe or frequent headaches.

9.  The applicant accepted nonjudicial punishment under Article 15 again on
14 November 1978 for being AWOL from 7 November 1978 through 8 November
1978.  His punishment consisted of reduction to the grade of private E-2, a
forfeiture of $109.00, performance of extra duty for a period of 14 days,
and 14 days restriction to the company area, chapel, and dining facility.

10.  The applicant underwent a physical examination on 10 September 1979
for the purpose of separation.  He completed a Report of Medical History in
which he checked "YES" under item 11 indicating that he had a "Frequent or
severe headache" and a "Head injury."  His Report of Medical Examination
indicated he was qualified for separation with a physical profile of
111111.

11.  On 14 September 1979, charges were preferred against the applicant for
being AWOL from 1 February 1979 to 5 September 1979.

12.  On 17 September 1979, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10.  In doing so, he
admitted guilt to the offense charged and acknowledged that he might
encounter substantial prejudice in civilian life and that he might be
ineligible for many or all Army benefits administered by the Veterans
Affairs (VA) if an UOTHC discharge was issued.  The applicant submitted
statements in his own behalf.  The applicant stated he was 22 years old and
completed 11 years of school.  He joined the Army to learn a skill, but he
did not get what he wanted.  He wanted to be a mechanic.  He
stated that he wanted to be out of the Army to be with his kids.  He also
stated, in effect, that he was the only one left to care for the kids
because their mom left them.

13.  On 11 October 1979, the separation authority approved the discharge
under the provisions of Army Regulation 635-200, chapter 10 with issuance
of an UOTHC discharge.

14.  The applicant was discharged on 26 October 1979 under the provisions
of Army Regulation 635-200, chapter 10 for the good of the service with an
UOTHC discharge.  He had completed 2 years, 8 months, and 5 days of active
military service with 261 days of lost time due to AWOL.

15.  There is no evidence of record which shows the applicant applied to
the Army Discharge Review Board (ADRB) within its 15-year statute of
limitations.

16.  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 UOTHC
is normally considered appropriate.

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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

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.





DISCUSSION AND CONCLUSIONS:

1.  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.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's record of service shows he received four Article 15s
for being AWOL and had over 250 days of AWOL.  As a result, his record of
service was not satisfactory and did not meet the standards of acceptable
conduct and performance of duty for Army personnel for either fully
honorable or general.

3.  The evidence of record shows that prior to the applicant's separation,
competent medical authority determined that he was then medically qualified
for separation with a physical profile of 111111.

4.  There is no evidence of record which indicates the actions taken in his
case were in error or unjust.  Therefore, there is no basis for granting
the applicant's request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 October 1979; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 25 October 1982.  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

BI______  DS______  EM______  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.




                                  Bernard Ingold________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050005719                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051206                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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