RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050007357


      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. Antoinette Farley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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
discharge be upgraded.

2.  The applicant states he was told his discharge could be upgraded when
he was discharged.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 December 1980, the date of his separation.  The application
submitted in this case is dated 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 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's service records show that he initially enlisted in the
Regular Army on 9 October 1979.  He completed basic combat training and
advanced individual training and was awarded Military Occupational
Specialty (MOS) 62F10 (Lifting/Loading Equipment Operator).  He was further
assigned to Fort Benning, Georgia for Basic Airborne Training.

4.  On 3 March 1980, while at Fort Benning, nonjudicial punishment was
imposed against the applicant for attempting to transfer a controlled
substance, i.e., marihuana, to another enlisted member on 20 February 1980.
 His punishment consisted of forfeiture of $104.00 pay per month for one
month and restriction for 14 days (7 days suspended for 30 days, to be
automatically remitted if not vacated before 2 April 1980).

5.  The applicant’s record documents no acts of valor, significant
achievement of service warranting special recognition, and the highest rank
he attained while serving on active duty was private/pay grade E-2.

6.  The applicant's personnel records contain a DA Form 4187, dated
17 September 1980, Headquarters, 7th Engineer Battalion (Cbt), Fort Polk,
Louisiana.  This form shows that the applicant status changed from present
for duty to absent without leave (AWOL) on 17 September 1980.

7.  The applicant's military service record contains a DA Form 4126 (Bar to
Reenlistment Certificate), dated 19 September 1980.  The form lists
additional disciplinary actions.  It shows the applicant had 4 years and
15 days of total active service with poor conduct and efficiency and a
record of non-payment of the just debts for bad checks to the PX on 25 May
1980 for $ 40.00, 10 June 1980 for $24.77, and 11 June 1980 for $11.00.
The form also shows he was counseled and attended check cashing class with
no apparent results since the command received notice of a $10.00 bad
check.

8.  The applicant's personnel records contain a DA Form 4187, dated
28 October 1980, filed by Headquarters 7th Engineer Battalion (Cbt), Fort
Polk, Louisiana. This form shows that the applicant status changed to
dropped from the rolls on 18 October 1980.

9.  The applicant's personnel records contain a DA Form 4187, dated
12 November 1980, filed by United States Army Personnel Control Facility,
Fort Knox, Kentucky.  This form shows that the applicant surrendered to
military authorities and was returned to military control on 3 November
1980.

10.  On 10 November 1980, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from 17 September 1980 through 3 November 1980.

11.  On 13 November 1980, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200, chapter 10 and in so doing admitted
guilt to the offense.  He indicated in his request that he understood he
could be discharged under other than honorable conditions and furnished an
Under Other Than Honorable Discharge Certificate; that he may be deprived
of many or all Army benefits; that he may be ineligible for many or all
benefits administered by the Department of Veterans Affairs; and that he
may be deprived of his rights and benefits as a veteran under both Federal
and State law.  He also acknowledged that he may expect to encounter
substantial prejudice in civilian life because of an under other than
honorable discharge.

12.  This form also shows that the applicant indicated by initialing this
form that he did not desire to have a chapter 10 separation medical
examination.  Additionally, the applicant elected to submit a statement in
his own behalf.  He states he is 18 years of age and on active duty.  He
adds that he joined the Army because he was unemployed.  He states he was a
crane operator and stationed at Fort Polk, Louisiana.  He further states
that he wants out of the Army because of too much pressure on him.  He adds
that he was becoming an alcoholic until he went AWOL.

13.  Evidence of record shows that on 13 November 1980, the applicant was
granted indefinite excess leave status to go home awaiting separation
processing.

14.  On 13 November 1980, the applicant's unit commander forwarded his
recommendation for separation of the applicant to the commander of the U.S.
Army Personnel Control Facility at Fort Knox, Kentucky, for approval.

15.  On 13 November 1980, the intermediate commander of the U.S. Army
Personnel Control Facility concurred with the recommendation and forwarded
the recommendation for separation of the applicant to the commander of the
United States Army Armor Center at Fort Knox, Kentucky for approval.

16.  On 2 December 1980, the separation authority approved the applicant's
request for separation and directed that he be discharged under the
provisions of chapter 10 of Army Regulation 635-200, reduced to the grade
of private/ pay grade E-1, and furnished an Under Other Than Honorable
Conditions Discharge Certificate.

17.  On 8 December 1980, U.S. Army Personnel Control Facility, Fort Knox,
Kentucky, issued Orders Number 231-2 to reduce the applicant's rank from
private/ pay grade E-2 to private/pay grade E-1 effective on 2 December
1980.

18.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was separated on 22 December 1980, under the
provisions of chapter 10 of Army Regulation 635-200 for the good of the
service in lieu of trial by court-martial and furnished an Under Other Than
Honorable Conditions Discharge Certificate.  The applicant's DD Form 214
also shows that he had served 11 months and 28 days.  His records also show
that he had 47 days of lost time due to AWOL and 40 days of excess leave
status.

19.  There is no evidence in the applicant's military personnel service
records which shows he was diagnosed with and/or treated for alcohol
dependency issues.  Additionally, there is no evidence in the available
records which show the applicant was diagnosed with and/or treated for a
medical condition involving "stress."
20.  There is no evidence the applicant applied to the Army Discharge
Review Board (ADRB) for upgrade of his discharge.

21.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separation) sets forth the basic authority for the separation of enlisted
personnel.  Chapter 10 of this regulation provides, in 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 charges have
been preferred submit a request for discharge for the good of the service
in lieu of trial by court-martial.  A discharge under other than honorable
conditions is normally considered appropriate.

22.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

23.  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 contends that he was told his discharge could be upgraded
after he was discharged.  There is no evidence the applicant applied to the
ADRB for upgrade of his discharge.

2.  The evidence of record shows that he voluntarily requested separation
under the provisions of chapter 10 of Army Regulation 635-200 in lieu of
trial by court-martial.  Discharge under chapter 10 requires an admission
of guilt to the offenses charged and usually results in a discharge under
other than honorable conditions.  Therefore, the applicant's contention is
not consistent with chapter 10 procedures and the evidence of record in
this case.

3.  Records show the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time.  Lacking 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.

4.  The applicant's record of service shows that his quality of service did
not meet the standards of acceptable conduct and performance of duty for
Army personnel during his current enlistment.  Therefore, he is not
entitled to an honorable discharge.

5.  The applicant’s record of service included nonjudicial punishment for
attempting to transfer a controlled substance, i.e., "Marihuana", to
another enlisted member; a record of non-payment of bad checks, in addition
to poor conduct and efficiency; and a period of AWOL for 47 days.  As a
result, his service was not satisfactory.  Therefore, the applicant's
record of service is insufficiently meritorious to warrant a general
discharge.

6.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on the date of his separation 22 December
1980; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 21 December 1983.  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

_MJF___  __LDS___  _MKP___  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.






            __M. K. Patterson_
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007357                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980.12.22                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Ch10                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Director                                |
|ISSUES         1.       |A144.0000                               |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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