RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      10 August 2006
      DOCKET NUMBER:  AR20050015506


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 discharge be upgraded to a
discharge under honorable conditions.

2.  The applicant states, in effect, that his prior service time was
outstanding and that he only got out of the Army because his father was
ill.  He believes that his commitment to the Army during his prior service,
should entitle him to veterans benefits such as health care.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 9 December 1981.  The application submitted in
this case is dated 27 October 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 on
2 July 1980 for a period of 3 years with 3 years of prior active service.
He completed the required training and was awarded military occupational
specialty 11B10 (Infantryman).  The highest grade he attained during this
enlistment was pay grade E-2.

4.  On 22 April 1981, the applicant accepted nonjudicial punishment for
being drunk while on duty.  His imposed punishment was a reduction to pay
grade
E-1 (suspended for 30 days), a forfeiture of $100.00 pay, 14 days
restriction and extra duty.

5.  On 5 May 1981, the applicant was convicted by a Special Court-Martial
of being Absent Without Leave (AWOL) from 5 January to 1 February 1981.  He
was sentenced to 7 days restriction and 7 days extra duty.
6.  On 8 October 1981, the applicant was convicted by a Summary Court-
Martial of being AWOL from 6 July to 24 August 1981.  He was sentenced to a
reduction to pay grade E-1, confinement at hard labor for 30 days
(suspended for
6 months) and a forfeiture of $334.00 pay.

7.  On 23 October 1981, court-martial charges were preferred against the
applicant for dereliction of duty and for being AWOL from 10 October to
11 November 1981.

8.  The facts and circumstances pertaining to the applicant’s discharge
proceedings are not in his Military Personnel Records Jacket (MPRJ).
However, the MPRJ does contain a separation document (DD Form 214) that
contains the authority and reason for his discharge.  The applicant was
discharged under the provisions of Army Regulation 635-200, Chapter 10, the
character of service was Under Conditions Other Than Honorable and the
reason for discharge was for conduct triable by court-martial.

9.  On 9 December 1981, the applicant received an Undesirable Discharge
after completing 1 year, 4 months, and 6 days of active military service
and 105 days of time lost during this enlistment.

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

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

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant was carefully considered and found to
have insufficient merit in this case.

2.  The applicant’s record is void of the specific facts and circumstances
surrounding his separation processing.  However, it does contain a properly
constituted DD Form 214 that identifies the reason and characterization of
the applicant’s discharge.  Therefore, Government regularity in the
discharge process is presumed.

3.  In the absence of any evidence of record or independent evidence to the
contrary, it is concluded that all requirements of law and regulation were
met and the rights of the applicant were fully protected throughout the
separation process. Further, the applicant’s discharge accurately reflects
his overall record of service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 December 1981, therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
8 December 1984.  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

__CG___  __JBG___  __PMT__  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.




                                  ____Curtis Greenway____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/08/10                              |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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