RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050006163


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 (UOTHC) be upgraded.

2.  The applicant states, in effect, he had perfect attendance at unit
drills.  Then he had an ear infection with loss of hearing and loss of
balance for one year.  He turned in a doctor's note, and the monthly
meeting schedule was changed.  He was barred from attending unit drills and
he was handed active duty orders.  It was an injustice that, for the first
time he was absent for an illness and an unwritten notice of a change in
the meeting schedule, he was given no further opportunity to continue
attending unit drills.  He was sent to Germany.  He went on 10 days leave.
He was discharged for not completing duty in Germany.

3.  The applicant provides a DD Form 293 (Application for the Review of
Discharge or Dismissal from the Armed Forces of the United States); a 22
March 2005 letter from the Army Review Boards Agency informing him the Army
Discharge Review Board could not review his case; a copy of an envelope
postmarked March 2005; and a VA Form 10-10EZ (Instructions for Completing
Applications for Health Benefits).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 January 1978.  The application submitted in this case
is dated   29 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 enlisted in the U. S. Army Reserve on 5 December 1970.
He was promoted to Staff Sergeant, E-6 on 25 February 1973 and performed
duties as a drill sergeant.

4.  On 12 August 1976, the applicant's commander requested orders be
published ordering the applicant to active duty for 15 months and 2 days
for unexcused absences from unit training assemblies.  The commander noted
that, during the period of annual training (15 through 29 May 1976), the
date of the June 1976 drill was changed.  Notice of the change was given
verbally by him to unit personnel and a written notice was put up in the
unit's orderly room.  The change was also given verbally by the battalion
Sergeant Major at the 6:00 a.m. 29 May 1976 departure from annual training.
 The applicant did not appear at the departure because he had left the
night of 28 May 1976 in violation of orders.

5.  The applicant's commander also stated that, when the applicant appeared
at the Reserve Center after the battalion had departed for field training
(during the   17 and 18 July 1976 meeting), he was told by the battalion
commander to go to a classroom and wait and that he (the applicant) would
then be taken to join the unit in the field.  Rather than following orders
and waiting, the applicant departed the Reserve Center and did not join his
unit in the field and did not return to the Reserve Center.  The commander
stated that at no time did the applicant mention he had any physical
problems that would prevent him from performing Reserve duty.  When the
applicant called the commander during the 21 August 1976 drill, he never
mentioned any physical problems.

6.  The applicant's commander stated he had been the company commander
since September 1975, and during that time the applicant had been late to
drills numerous times.  The applicant was absent in September 1975 with a
doctor's statement.  He was unexcused the first period of the drill on 19
October 1975.  He was given an excused absence on 8 November 1975.  He was
absent with a doctor's statement on 22 February 1976.  He arrived about 8
hours late at annual training and left about 12 hours early against orders.


7.  Effective 21 September 1976, the applicant was reduced to Private, E-2.

8.  The applicant appealed the order to involuntary active duty.  He stated
he believed the June 1976 drill would be earlier because of a schedule
handed out in January 1976.  He received no notification of a change in the
schedule by mail nor was he told of such a change at the May 1976 meeting,
which he attended.  He reported to the Reserve Center to find the Center
locked.  Since that had happened previously, he assumed the meeting had
been cancelled and that he should report to the July meeting.  He stated he
may have shown poor judgment for not confirming the meeting had not been
rescheduled, but he believed he should not be punished with four
unauthorized absences.

9.  In regard to the 17 and 18 July 1976 unit meeting, the applicant stated
he contracted a very serious ear infection.  On the morning of 17 July
1976, his ear was particularly painful and troublesome, yet he reported to
the unit that day. Apparently because he had missed the June meeting, he
was unaware the unit would be reporting early in July and, for that reason,
when he arrived at the Reserve Center the unit had already departed for
field training.  Because his ear condition was so serious, he did not feel
it was wise for him to go to the field and thus he returned home after
finding he could perform no useful service at the Reserve Center.  He
turned in his doctor's excuse at the August 1976 meeting; however, it was
not accepted by the commander because it was not turned in within 14 days
after a missed meeting.  The battalion never enforced the 14-day rule in
the past, and he should not be penalized for following a course of action
that he and other members of the unit had followed with impunity for more
than   5 years.

10.  The Appeal Board convened on 28 February 1977 and found the
administrative procedures required to support a call to involuntary active
duty for unsatisfactory participation had been followed.  The Appeal Board
found the applicant was properly charged with 8 unexcused drill absences
from 19 June to 18 July 1976 because (1) his ignorance of the June drill
dates was caused by his leaving annual training early and not examining the
unit bulletin board; (2) his claim of illness was found to be not credible
as he made no medical appointment until after the July absences and did not
see a physician until after those absences; and (3) he was told to wait at
the unit center but left instead.

11.  Orders dated 8 October 1976 ordered the applicant to active duty with
an effective active duty accession date of 29 November 1976.  Those orders
were amended on 17 November 1976 to change his active duty accession date
to     28 January 1977.  They were further amended on 21 January 1977 to
change his accession date to 28 March 1977, and still further amended on 21
March 1977 to change his accession date to 11 April 1977.  They were again
amended on         4 April 1977 to change his accession date to 11 May
1977, and they were amended for a last time on 5 May 1977 to change his
accession date to 13 June 1977.

12.  The applicant was assigned to the 3d Adjutant General Company, 3d
Infantry Division, Germany on or about 11 July 1977 as a clerk.

13.  On 25 September 1977, the applicant departed for the States on 20 days
leave.  He was reported absent without leave (AWOL) on 15 October 1977.  He
turned himself in to Fort Leonard Wood, MO on 8 December 1977.

14.  On 12 December 1977, the applicant completed a separation physical
examination and was found qualified for separation.

15.  On 12 December 1977, the applicant completed a mental status
evaluation.  He was found to be mentally responsible, to be able to
distinguish right from wrong and to adhere to the right, and to have the
mental capacity to understand and participate in board proceedings.

16.  On 13 December 1977, charges were preferred against the applicant
charging him with being absent without leave (AWOL) from on or about
      15 October to on or about  8 December 1977.

17.  On 13 December 1977, after consulting with counsel, the applicant
voluntarily requested discharge under the provisions of Army Regulation
     635-200, chapter 10, for the good of the service in lieu of trial by
court-martial.  The applicant was advised of the effects of a discharge
UOTHC and that he might be deprived of many or all Army and Veterans
Administration benefits.  He submitted no statement in his own behalf.

18.  On 6 January 1978, the appropriate authority approved the applicant’s
request and directed he receive a discharge UOTHC.

19.  On 13 January 1978, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service with a discharge UOTHC.  He separated on temporary records.
He had 54 days of lost time.

20.  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.
The request may be submitted at any time after charges have been preferred
and must include the individual’s admission of guilt. A discharge UOTHC is
normally considered appropriate.

21.  Army Regulation 635-200 also states an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the Soldier’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.  Where there have been infractions of discipline, the extent
thereof should be considered, as well as the seriousness of the offense(s).
 A general discharge is a separation from the Army under honorable
conditions.  It is issued to a Soldier whose military record is
satisfactory but not sufficiently meritorious to warrant an honorable
discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions, which were similar to the contentions he
raised in his appeal to his commander's request to involuntarily order him
to active duty, have been considered.

2.  In his request to have the applicant involuntarily ordered to active
duty, his commander stated notification of a change to the dates of the
June 1976 drill was given out several times during annual training in May
1976, to include notification by the battalion Sergeant Major at the 6:00
a.m. 29 May 1976 departure from annual training.  The applicant, however,
did not appear at the departure because he had left the night of 28 May
1976 in violation of orders.  In his appeal, the applicant did not refute
or address this statement.

3.  In his request to have the applicant involuntarily ordered to active
duty, his commander also stated that, when the applicant appeared at the
Reserve Center on 17 July 1976 after the battalion had departed for field
training, he was told by the battalion commander to go to a classroom and
wait and that he (the applicant) would then be taken to join the unit in
the field.  Rather than following orders and waiting, the applicant
departed the Reserve Center and did not join his unit in the field and did
not return to the Reserve Center.

4.  In his appeal, the applicant stated that, because his ear condition was
so serious, he did not feel it was wise for him to go to the field and thus
he returned home after finding he could perform no useful service at the
Reserve Center.  He did not address the commander's statement that he was
told to wait.  He did not address the commander's statement that he never
mentioned he had any physical problems that would prevent him from
performing Reserve duty.

5.  The applicant did not rebut several issues surrounding his unexcused
absences his commander raised at the time and does not rebut them now.  It
appears his commander made a correct decision to request his involuntary
order to active duty, and he was subsequently involuntarily ordered to
active duty and assigned to Germany.

6.  The applicant, a former noncommissioned officer and drill sergeant,
departed AWOL after being in Germany about four months and was AWOL for 54
days.  His 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.  Considering his age and prior military
experience, it appears the characterization of service given to him was
appropriate.
7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 January 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         12 January 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

__jch___  __reb___  __jrm___  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.




                                  __James C. Hise_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006163                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780113                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 10                       |
|DISCHARGE REASON        |A70.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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