RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            30 MARCH 2006
      DOCKET NUMBER:   AR20050009137


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Carol Kornhoff                |     |Member               |
|     |Mr. Rowland Heflin                |     |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 and the narrative reason for separation be upgraded to honorable
and changed to a more favorable reason.

2.  The applicant states that he has remained an upstanding and productive
citizen for 22 years since his discharge and is now happily married with
three children.  He also states that with the help of his family, he has
become a better person and he still loves his country, the armed forces and
all that serve.  He continues by stating that he has obtained several
firearms licenses from various States.  He also states that he is a simple
man, who in his youth made a mistake and he asks that the Board change his
discharge status to help him feel more honorable.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 December 1983.  The application submitted in this case is
dated 23 June 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.  He was born on 22 May 1959 and enlisted in the Regular Army in
Baltimore, Maryland, on 21 May 1981, for a period of 3 years, training as
an infantryman and assignment to the 101st Airborne Division.  He completed
his one-station unit training (OSUT) at Fort Jackson, South Carolina, and
on 18 August 1981, he was transferred to Fort Campbell, Kentucky for duty
as a rifleman.

4.  On 15 September 1981, he went absent without leave (AWOL) and remained
absent in desertion until he was apprehended by civil authorities in
Baltimore, Maryland on 12 October 1983 and was released to military
authorities at Fort Meade, Maryland on 18 October 1983.
5.  He was subsequently transferred to the Personnel Control Facility at
Fort Dix, New Jersey, where charges were preferred against him for the AWOL
offense.

6.  The facts and circumstances surrounding the applicant’s discharge are
not present in the available records.  However, his records do contain a
duly constituted report of separation (DD Form 214) signed by the
applicant, which shows that he was discharged at Fort Dix, New Jersey, on
16 December 1983, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 5 months and 23 days
of total active service and had 762 days of lost time due to AWOL.

7.  He applied to the Army Discharge Review Board (ADRB) on 23 December
1997 for an upgrade of his discharge to honorable.  He asserted at that
time that he had been a productive citizen since his discharge, that he had
accomplished several certifications since leaving the service and that his
AWOL incident was an isolated incident and that none had occurred before of
after that incident.  The ADRB after reviewing all of the available
evidence in his case determined that his discharge was both proper and
equitable given the circumstances in the case and unanimously denied his
request on 17 June 1998.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a voluntary request for
discharge for the good of the service in lieu of trial by court-martial.  A
condition of submitting such a request is that the individual concerned
must admit guilty to the charges against them or of lesser included
offenses that could result in a felony conviction and they must indicate
that they have been briefed and understand the consequences of such a
request as well as the discharge they might receive. A discharge under
other than honorable conditions was at that time and is still normally
considered appropriate.

9.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  The applicant’s contentions have been considered by the Board.
However, they are not sufficiently mitigating to warrant relief when
compared to his overall record of undistinguished service.

5.  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.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 June 1998.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 16 June 2001.  The applicant
did not file within the ABCMR's 3-year statute of limitations and has not
provided 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

___JM __  ___CK __  ___RH___  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.




                                  ______John Meixell________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050009137                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060330                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1983/12/16                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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