RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 December 2005
      DOCKET NUMBER:  AR20050008625


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Ms. Jeanette B. McPherson         |     |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, an upgrade of under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, that when he went absent without leave
(AWOL) in the beginning of 1983 to take care of his wife, who was pregnant
at the time.  He states that he was arrested in Macon County, Tennessee
(TN) for being AWOL and remained in jail there for almost a month before
being transferred to military authorities, at which time he was separated.
He claims that since his discharge, he was employed at the same place for
21 and 1/2 years, from November 1983 until May 2005, when the plant closed
down.  He was never in any trouble and rose to be a shift supervisor.  He
states that he knew it was wrong when he went AWOL, and it has always been
in the back of his mind that he would like to get his discharge upgraded,
and makes this request now.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 August 1983.  The application submitted in this case is
dated
30 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 that he enlisted in the Regular Army
and entered active duty on 28 October 1980.  He was trained in and awarded
military occupational specialty (MOS) 19E (Armor Crewman).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows he
was promoted to specialist four (SP4) on 1 September 1982, and that this
was the highest rank he attained while serving on active duty.  Item 9
(Awards, Decorations and Campaigns) shows he earned the Army Service Ribbon
and Expert Qualification Badge with Pistol Bar during his active duty
tenure.

5.  The applicant’s record shows that he was assigned to Germany and
departed Fort Knox, Kentucky for that assignment on 15 December 1982.  On
14 January 1983, he was declared AWOL after failing to report to his
assignment in Germany.  On 11 June 1983, he was apprehended by civil
authorities in Lafayette, TN, and he was returned to military control on
that same date.

6.  On 13 July 1983, 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 on or about 14
January 1983 through on or about 11 June 1983.

7.  On 15 July 1983, the applicant 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 that were
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.

8.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charges against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

9.  On 4 August 1983, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
22 August 1983, the applicant was discharged accordingly.  The DD Form 214
he was issued confirms he was separated under the provisions of chapter 10,

Army Regulation 635-200, for the good of the service in lieu of trial by
court-martial.  This document further shows he completed a total of 2
years,
4 months, and 28 days of creditable active military service, and that he
accrued 148 days of time lost due to AWOL.

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

11.  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.  A
discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his discharge based on his
good post service conduct was carefully considered.  However, this factor
alone is not sufficiently mitigating to warrant granting the requested
relief at this late date.

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 defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  In
his request for discharge, he admitted guilt to the charge against him, or
of a lesser included offense, that also authorized the imposition of a bad
conduct or dishonorable discharge.  All requirements of law and regulation
were met and that 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 22 August 1983, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 21 August 1986.  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

___TSK _  __RLD __  ___JBM _  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.




            ____Ted S. Kanamine_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008625                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/22                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1983/08/22                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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