RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 December 2005
      DOCKET NUMBER:  AR20050007312


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Mr. Scott 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 his discharge under other than honorable
conditions be upgraded to honorable.

2.  The applicant states at the time of his discharge he was under a lot of
family stress and was very argumentative.  He also states that his military
service was honorable and the only problem he had was when he was
discharged.  Since that time he has conducted himself in an honorable
manner and has a clean record.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty); service personnel records; and four character reference
letters.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 July 1978.  The application submitted in this case is dated 9
May 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 enlisted in the Army National Guard on 7 June 1975 for a
period of 6 years.  He was discharged with a general discharge on 27
February 1977 from the Army National Guard and involuntarily ordered to
active duty on
28 February 1977.

4.  On 18 July 1977, in accordance with his pleas, the applicant was
convicted by a summary court-martial of two specifications of behaving with
disrespect toward a superior commissioned officer.  He was sentenced to
forfeit $200 pay per month for one month, to be reduced to E-1, and to be
confined at hard labor for 7 days.  On 19 July 1977, the convening
authority approved only so much of the sentence as provided for forfeiture
of $200 pay per month for one month, to be reduced to E-1, and to be
confined at hard labor for 6 days.

5.  The applicant went absent without leave (AWOL) on 11 May 1978 and
returned to military control on 12 June 1978.

6.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, the applicant's DD Form
214 shows that he was discharged under other than honorable conditions on 7
July 1978 under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service in lieu of trial by court-martial.  He had served 1
year, 6 months and 14 days of creditable active service with 37 days of
lost time.

7.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

8.  The applicant provided four character reference letters.  The
applicant’s mother attests that he was very wrong and regrets his errors
very much.  She states that the applicant has become a productive citizen
and that he works in the church.  The applicant’s sister attests that her
father and grandmother died and then the applicant got into trouble with a
superior (she contends that the applicant punched a lieutenant).  She
contends that the applicant continues to improve his life and that he works
in the church and Alcoholic Anonymous groups.  A family friend attests that
the applicant is a good citizen, that he has had several bouts with his
health, and that he needs medical treatment from a Government facility.
The applicant’s pastor attests that he has made a significant effort to
improve his life and conduct himself as a productive citizen and that he
has a number of physical challenges.

9.  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 under
other than honorable conditions is normally considered appropriate.

10.  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.

11.  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 character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

2.  A discharge is not upgraded for the purpose of obtaining Department of
Veterans Affairs benefits.

3.  In the absence of evidence to the contrary, it must be presumed that
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.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 7 July 1978; therefore, the time for the
applicant to file a request for correction of any injustice expired on 6
July 1981.  The applicant is requesting upgrade of his discharge based on
good post-service conduct and he has provided evidence of post-service
achievement or good conduct.  In view of the submitted evidence and since
good post-service conduct could only accrue subsequent to discharge from
the Army, it is in the interest of justice to waive failure to timely file
in the case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

RD____  _JG____  _SF_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



            ___Richard Dunbar_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007312                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780707                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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