RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 JULY 2006
      DOCKET NUMBER:  AR20050013650


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette 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 that his records be corrected by upgrading his
discharge.

2.  The applicant states that he joined the Reserves because he had no high
school diploma or GED (General Education Development).  In April 1979, he
decided to go active duty, and attended Oscar Rose Junior College to get
his GED.  His recruiter told him that he had passed the test for his GED
but he never received a certificate or verification showing that he had
passed.  When he checked with the College and they had no record of his
passing the test, he went to Rio Solado College in Goodyear, Arizona, in
January 1990, and received his GED.

3.  The applicant further states that he was too young and inexperienced to
know how to deal with his problems, and began drinking alcohol and doing
drugs.  He needed counseling and help, and had no idea of how to get it.
He was told that if he was absent without leave (AWOL) for 75 days he would
be discharged from the Army "for the good of the Army."  He left his unit
with the intention of staying away for 75 days, but found that he could not
remain AWOL and turned himself in.

4.  The applicant provides a self-authored affidavit and a copy of his DD
Form 214 (Certificate of Release or Discharge from Active Duty), in support
of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
7 March 1980.  The application submitted in this case is dated 6 September
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 enlisted in the Regular Army on 30 April 1979, for a
period of
3 years.

4.  In June 1979, the applicant accepted nonjudicial punishment under the
provisions of Article 15, Uniform Code of Military Justice, for the
wrongful appropriation of a Soldier’s motorcycle, for stealing another
Soldier’s leather jacket, and for failure to go to his appointed place of
duty.  His punishment was restriction and extra duty.

5.  On 29 January 1980, the applicant declined a separation medical
examination.

6.  On 31 January 1980, the applicant's commander preferred a court-martial
charge against him for being absent without leave (AWOL) from 1 November
1979 to 26 January 1980.

7.  On 31 January 1980, a Mental Status Evaluation psychiatrically cleared
the applicant for separation.

8.  On 1 February 1980, after consulting with legal counsel, the applicant
voluntarily submitted a request for discharge, under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service in lieu of
trial by court-martial.  He acknowledged that he was guilty of the charges
against him, and that he understood the effects of receiving an under other
than honorable conditions (UOTHC) discharge.

9.  On 21 February 1980, the applicant’s commander recommended approval of
his discharge request, and recommended the issuance of an UOTHC discharge.

10.  On 28 February 1980, the appropriate separation authority approved the
applicant’s request and directed his reduction to pay grade E-1, and the
issuance of an UOTHC discharge.

11.  On 7 March 1980, the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.
His DD Form 214 (Certificate of Release or Discharge from Active Duty)
indicates he had
10 months and 21 days of total active service.

12.  Army Regulation 635-200, then in effect, set forth the basic authority
for the separation of enlisted personnel.  Chapter 10 of that regulation
provided, in pertinent part, that a member who had committed an offense or
offenses for which the authorized punishment included a punitive discharge
could at any time after the charges had been preferred; submit a request
for discharge for the good of the service in lieu of trial by court-
martial.  At the time of the applicant’s separation, the regulation
provided for the issuance of an UOTHC discharge.

DISCUSSION AND CONCLUSIONS:

1.  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.  The applicant was advised by his consulting legal counsel of his rights
and the possible effects of an UOTHC discharge.

3.  The fact that the applicant believed that he had not passed his GED
prior to entering active duty has no bearing on the circumstances of his
discharge.  His contention that he was too young and inexperienced to deal
with his problems is insufficient to warrant the relief requested.

4.  There is no evidence in the available records nor did the applicant
provide any documentation that he was told if he was AWOL for 75 days that
he would be separated "for the good of the service."

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 March 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
6 March 1983.  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

__JS  ___  __CD ___  ___JM __  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 Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013650                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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