RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 July 2006
      DOCKET NUMBER:  AR20050015711


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 discharge be upgraded to an honorable or general discharge.

2.  The applicant states, in effect, that his overall record of service was
not given due consideration at the time of his discharge.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 September 1986, the date of his discharge.  The
application submitted in this case is dated 25 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's military service records show that he enlisted in the
U.S. Army Reserve on 3 March 1975 and entered active duty in the Regular
Army on
22 November 1976.  He completed basic combat training and advanced
individual training and was awarded military occupational specialty 75C
(Personnel Management Specialist).  On 26 May 1978, the applicant
reenlisted for a period of 3 years.  The highest rank he attained while
serving on active duty was specialist four/pay grade E-4.

4.  The applicant’s military service records contain a copy of a DA Form
2627 (Record of Proceedings Under Article 15, UCMJ), dated 4 September
1979.  This document shows that non-judicial punishment was imposed against
the applicant for disobeying a lawful order of a superior noncommissioned
officer, not to go into a specific company area, and that he did willfully
disobey that same order on four separate occasions.  His punishment
consisted of reduction to the grade of E-3 (suspended for 2 months) and
forfeiture of $75.00 pay for one month.

5.  The applicant’s military service records contain numerous DA Forms 4187
(Personnel Actions), ranging in dates from 10 March 1980 through 25 June
1986, which serve to document the applicant's duty status between 21
February 1980 and 17 June 1986.  These documents, in pertinent part, show
that the applicant's duty status changed from present for duty (PDY) to
ordinary leave (LV) on
21 February 1980; from ordinary LV to absent without leave (AWOL) on
10 March 1980; from AWOL to PDY on 11 March 1980; from PDY to AWOL
(2nd Offense) on 5 April 1980; from AWOL to dropped from rolls (DFR) on 5
April 1980; from DFR to PDY on 1 May 1980; from PDY to AWOL on 22 May 1980;
from AWOL to DFR on 23 May 1980; from DFR to PDY on 27 May 1980; from PDY
to confined by military authorities (CMA) on 2 June 1980; from CMA to PDY
on 10 June 1980; from PDY to AWOL on 17 June 1980; from AWOL to PDY on 18
June 1980; from PDY to AWOL on 26 June 1980; from AWOL to PDY on
27 June 1980; from PDY to AWOL on 18 July 1980; from AWOL to PDY on
22 July 1980; from PDY to CMA on 24 July 1980; from CMA to PDY on 4 August
1980; from assigned-not-joined (ASNJ) to AWOL on 8 August 1980; from AWOL
to DFR on 7 September 1980; from DFR to PDY on 20 September 1982; from PDY
to AWOL on 23 October 1982; from AWOL to DFR on 26 October 1982; and from
DFR to PDY on 17 June 1986.

6.  The applicant’s military service records contain a copy of
Headquarters, U.S. Army Personnel Control Facility, U.S. Army Training
Center and Fort Dix, Fort Dix, New Jersey, Summary Court-Martial Order
Number 63, dated 25 July 1980. This document shows, in pertinent part, that
the applicant was found guilty of the charge of two specifications of being
AWOL, guilty of one charge of willful disobedience of a lawful command, and
guilty of an additional charge of failure to obey a lawful order.  His
sentence was confinement at hard labor for 15 days, forfeiture of $100.00
per month for 1 month, and reduction to the grade of private/pay grade E-1.
 The sentence was adjudged on 23 July 1980, and approved and ordered
executed on 25 July 1980.

7.  The applicant's military service records contain a DA Form 2-1
(Personnel Qualification Record).  Section VII (Current and Previous
Assignments),
Item 35 (Record of Assignments), of the DA Form 2-1 documents the
applicant's assignment history.  Item 35 of the DA Form 2-1 is absent any
entry that shows the applicant performed principal duties in his primary
MOS as a Personnel Management Specialist at any time during the 6 and 1/2
years period from
10 March 1980 to 15 September 1986.  Item 21 (Time Lost), coupled with Item
28 (Item Continuation) of the DA Form 2-1 shows, in pertinent part, that
the applicant had a total of 2,112 days (i.e., more than 5 years and 9
months) of lost time during this same period.

8.  The applicant's military service records contain a copy of
Headquarters,
U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Orders 175-
76, dated 24 June 1986.  Paragraph 2 of this document shows, in pertinent
part, that the applicant was assigned to Company A, U.S. Army Personnel
Control Facility, Fort Dix, New Jersey, effective 17 June 1986.

9.  The applicant's service records are absent a copy of the documentation
related to the applicant's separation action.

10.  The applicant's military service records contain a copy of
Headquarters,
U.S. Army Training Center and Fort Dix, Fort Dix, New Jersey, Orders 239-
83, dated 27 August 1986.  Paragraph 1 of this document shows, in pertinent
part, that the applicant was reduced from the rank of specialist four/pay
grade E-4 to the rank of private/pay grade E-1, effective 21 August 1986.

11.  Paragraph 2 of Orders 239-83, dated 27 August 1986, shows, in
pertinent part, that on 15 September 1986, the applicant was reassigned
from Company A, U.S. Army Personnel Control Facility, Fort Dix, New Jersey,
to the U.S. Army Transfer Point, U.S. Army Training Center and Fort Dix,
Fort Dix, New Jersey, for discharge on 15 September 1986.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged under other than honorable
conditions, effective 15 September 1986, under the provisions of chapter 10
of Army Regulation 635-200, for the good of the service - in lieu of trial
by court-martial.  This document also shows that the applicant completed 2
years,
5 months, and 17 days of net active service during the period of service
and had a total of 3 years, 11 months, and 21 days of total active service.
 Item 29 (Dates of Time Lost During This Period) of the DD Form 214 further
shows that he had time lost from 5 April 1980 to 30 April 1980, from 8
August 1980 to 19 September 1982, and from 22 October 1982 to 16 June 1986.

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

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
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 submit a request for discharge
for the good of the service in lieu of trial by court-martial.  The request
may be submitted at any time after charges have been preferred and must
include the individual's admission of guilt.  Although an honorable or
general discharge is authorized, a discharge under other than honorable
conditions is normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-3, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is
satisfactory, but not sufficiently meritorious to warrant an honorable
discharge.  A characterization of under honorable conditions may be issued
only when the reason for the Soldier's separation specifically allows such
characterization.

16.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under conditions other than
honorable should be upgraded because his overall record of service was not
given due consideration.  However, the applicant provided no evidence, and
there is no evidence in the available records, that supports the
applicant’s contention that his overall record of service was not given due
consideration at the time he was discharged from military service.

2.  The applicant’s service record shows that the applicant had 2,112 days
(i.e., more than 5 years and 9 months) of lost time during the course of
the 8-year and 3-month period of time under review.  In addition, the
evidence of record shows that the applicant did not perform any principal
duties related to his primary MOS, or any other Army MOS, over the course
of the last 6 years and
6 months of service while the applicant was on the Army rolls.  Therefore,
in view of the foregoing, the evidence of record shows that due
consideration was given to the applicant's overall record of service at the
time he was discharged from military service.

3.  There is a presumption of administrative regularity in the conduct of
governmental affairs.  This presumption can be applied to any review unless
there is substantial creditable evidence to rebut the presumption.  In this
instance, the "presumption of regularity" is based upon Army Regulation 635-
200 (Active Duty Enlisted Personnel Separations), Chapters 2 and 3, which
provide the procedures for separation and specific guidance in determining
the character of service and description of separation.  Therefore, in the
absence of evidence to the contrary, the Board concludes that the applicant
was properly and equitably discharged in accordance with the regulations in
effect at that time, all requirements of law and regulations 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 undistinguished service.

4.  The applicant’s record of service for the period under review shows
that he completed 2 years, 5 months, and 17 days (or 897 days) of service.
However, he also had a total of 2,112 days of lost time, which did not meet
the standards of acceptable conduct and performance of duty for Army
personnel.  Thus, the applicant is not entitled to an honorable discharge.
Furthermore, this service was not satisfactory; therefore, the applicant is
also not entitled to a general discharge.

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 should have discovered the alleged error or
injustice now under consideration on 15 September 1986; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
14 September 1989.  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

__JEV___  __BJE___  __DLL__  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.




                                  ____James E. Vick_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015711                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060719                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19860915                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the Good of the Service - In Lieu of|
|                        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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