RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         17 November 2005
      DOCKET NUMBER:  AR20050007627


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John E. Denning               |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, that 23 years ago, when he was just 21
years old and in a bad marriage, he made the mistake of going absent
without leave (AWOL).  He further claims he was a young man thinking he had
his entire life ahead of him, and he did not realize his action would
affect him for the rest of his life.  He further states he is now a 40 year
old man and has led a decent and law abiding life since his discharge.  He
indicates that he has no criminal record and that he has been married to a
wonderful woman for 16 years, and he now has five children.  He also states
he now is a truck driver for Roadway Express in Cincinnati, Ohio, and is
active in his community.  He further states he is a registered active voter
on school board issues, in local government and in national elections.  He
further states he has no need for any benefits as his company provides him
a very good income, plus insurance.

3.  The applicant also indicates he is requesting an upgrade of his
discharge in order to show his father, who is very ill, that in spite of
this one time mistake, he has turned his life around and is someone his
father can be proud of.  He further states that this is the only blemish in
what has been a good life, and he is proud to have been part of the United
States Army, and he now greatly regrets what he did.

4.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 6 December 1982.  The application submitted in this case
is dated 10 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 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 record shows he enlisted in the Regular Army and
entered active duty on 14 August 1979.  His record further shows he was an
academic failure in his advanced individual training and was never awarded
a military occupational specialty (MOS).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  It does reveal a
disciplinary history that includes his acceptance of nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) on 1 November 1979, for failure to obey a lawful order.

5.  On 4 January 1980, while he was assigned to Company D, 1st Battalion,
1st Brigade, Fort Sill, Oklahoma, the applicant departed AWOL from his
unit.  On 4 February 1980, he was dropped from the rolls of the
organization.  He was ultimately apprehended and returned to military
control on 24 October 1982.

6.  On 26 October 1982, a DD Form 458 (Charge Sheet) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the UCMJ for being AWOL from on or about 4 January 1980
through on or about 24 October 1982.

7.  On 29 October 1982, the applicant’s unit commander recommended he be
separated under the provisions of paragraph 14-12c, Army Regulation 635-
200, by reason of misconduct.  The commander cited the applicant’s
disciplinary history as the basis for taking the action.

8.  On 29 October 1982, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, its effects,
of the rights available to him, and of the effects of waiving those rights.


9.  On 24 November 1982, the separation authority directed the applicant’s
separation under the provisions of paragraph 14-12c, Army Regulation 635-
200, by reason of misconduct.  On 6 December 1982, the applicant was
discharged accordingly.  The DD Form 214 he was issued upon his discharge
confirms he completed a total of 6 months and 3 days of creditable active
military service, and had accrued 1023 days of time lost due to AWOL.

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

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  An under other than honorable
conditions (UOTHC) discharge is normally appropriate for members separated
under these provisions

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he has been a good law abiding citizen
and active member of his community since his discharge was carefully
considered.  However, while the applicant is to be commended for his post
service conduct, this factor alone is not sufficiently mitigating to
warrant an upgrade of his discharge at this time.

2.  The record confirms the applicant’s separation processing was
accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  His record
documents no acts of valor, significant achievement, or service warranting
special recognition.  However, It does however reveal an extensive
disciplinary history that includes his accruing 1023 days of time lost due
to AWOL.  Therefore, his discharge accurately reflects his record of short
and undistinguished service.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 December 1982.  Therefore, the time
for him to file request for correction of any error or injustice expired on
5 December 1985.  He failed to 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

___LE  __  __JED___  __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.




                                  _____Lester Echols________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007627                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-17                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1982/12/06                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 14 Misconduct (AWOL)            |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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