RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         29 November 2005
      DOCKET NUMBER:  AR20050007680


      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. Stanley Kelley                |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, that at the time of his enlistment, he
was
17 years old, young and impressionable, and he thought service in the
United States Army would make him a man who was willing to serve his
country.  He states that he lost his rank because of immature choices he
made, and the greatest regret he has are the actions he took after he was
demoted.  He states that even though the Army made a just decision to
discharge him based on his behavior, his previous record was beyond
reproach and should have been taken into consideration.  He further states
that he should have received another form of discipline rather than being
discharged.  He claims an alternate course would have allowed him to work
through his demotion and accomplish the original goal he had when he joined
the Army.

3.  The applicant provides a self-authored letter and Department of
Veterans Affairs (VA) letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 August 1982.  The application submitted in this case is
dated
7 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 Army and entered active
duty on 13 November 1978, at the age of 17 years, 9 months and 18 days.  He
was trained in, awarded, and served in military occupational specialty
(MOS) 11B (Infantryman).  His record confirms the highest rank he attained
while serving on active duty was specialist (SPC).

4.  On 14 May 1982, a Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for two specifications of
violating Article 86 of the Uniform Code of Military Justice (UCMJ).
Specification I was for being absent without leave (AWOL) from on or about
23 March 1981 through on or about 25 June 1981.  Specification II was for
being AWOL from on or about
2 July 1981 through on or about 5 May 1982.

5.  The applicant’s record shows that on 14 May 1982, he consulted with
legal counsel and was advised of the basis for the contemplated trial by
court-martial, the maximum permissible punishment authorized under the
UCMJ, the possible effects of an UOTHC discharge, and of the procedures and
rights available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial, under the provisions of chapter 10, Army
Regulation 635-200.

6.  In his request for discharge, the applicant confirmed he was making the
request of his own free will and he acknowledged that he was guilty of at
least one of the charges against him, or of at least one lesser included
offense therein contained that also authorized the imposition of a bad
conduct or dishonorable discharge.

7.  The applicant also acknowledged his understanding that he could be
furnished an UOTHC discharge, that he could be deprived of many or all Army
benefits, that he could be ineligible for many or all benefits administered
by the VA, and of his rights and benefits as a veteran under both Federal
and State law. He further acknowledged that he understood he could expect
to encounter substantial prejudice in civilian life because of the UOTHC
discharge.  Both the applicant and his legal counsel authenticated this
document with their signatures.

8.  On 28 July 1982, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC.  On 12 August
1982, the applicant was discharged accordingly.  The DD Form 214 he was
issued confirms he completed a total of 2 years, 7 months, and 27 days of
creditable active military service and accrued 408 days of time lost due to
AWOL.  He was 21 years, 6 months and 17 days old on the date of his
discharge.

9.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade to his discharge within its
15-year statute of limitations.

10.  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.
An UOTHC discharge is normally considered appropriate for members separated
under this provision of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his youth an immaturity impaired his
ability to serve and the support evidence he provided were carefully
considered.  However, this factor is not sufficiently mitigating to warrant
granting the requested relief.  It is noted that the applicant was over 20
years old and had completed over two years of military service when he
first went AWOL, and that he was over 21 years of age at the time of his
discharge.

2.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with counsel, he voluntarily requested
discharge in lieu of trial by court-martial.  All requirements of law and
regulation were met and the rights of the applicant were fully protected
throughout the separation process.

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 12 August 1982.  Therefore, the time
for him to file request for correction of any error or injustice expired on
11 August 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

___SK __  __MHM__  ___LMD_  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.




                                  _____Stanley Kelley______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050007680                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-11-29                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1982/08/12                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Chapter 10                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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