RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050016052


      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. Karl L. Briales               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 under other than honorable conditions
discharge be upgraded to honorable.

2.  The applicant states that he was 18 year old, young and naïve.  He
states he did not have a good childhood and that his parents, for a number
of reasons, did not attend his school activities or, in effect, take an
interest in him.  He joined the Army in order to have some hope in his
life.  He was trained and sent to Hawaii where he did his job to
perfection.  He states that his father suffered a massive stroke and he was
given emergency leave.  After he returned to duty, his father passed away.

3.  The applicant adds that he was transferred from Hawaii to Fort
Campbell, Kentucky.  He left Hawaii and went to visit his mother.  She was
sick and his father had just died, so he didn't report to Fort Campbell.
He concludes that he has never been in any other trouble with the law.

4.  The applicant provides a self-authored statement; a letter of
appreciation, dated 30 August 1977; and a copy of a letter from a doctor,
dated 9 August 1976.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 August 1978, the date of his discharge from active
duty.  The application submitted in this case is dated 16 April 2005;
however, was not received for processing until 4 November 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 he was born on 8 May 1954 and he enlisted
on 7 March 1975 at 20 years and 10 months of age.  After completion of
basic and advanced individual training, he was awarded the military
occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).

4.  The applicant's record also shows that his first duty assignment was in
Hawaii and, after completion of his tour in Hawaii, he was issued
reassignment orders to Fort Campbell, Kentucky with a reporting date of 4
October 1977.

5.  On 5 September 1977, the applicant signed out of his unit in Hawaii
with leave en route to Fort Campbell.

6.  On 4 October 1977, the applicant was to report for duty at Fort
Campbell; however, he failed to report and was placed in an absent without
leave (AWOL) status.

7.  On 6 June 1978, the applicant was apprehended by local authorities and
was returned to the U.S. Army Military Control Facility, Fort Sill,
Oklahoma.

8.  On 7 July 1978, the applicant was formally charged with AWOL from
4 October 1977 through 6 June 1978.  Also on 7 July 1978, he consulted with
counsel and voluntarily requested discharge for the good of the service
under the provisions of Army Regulation (AR) 635-200, chapter 10, in lieu
of trial by court-martial.  In so doing he stated that he acknowledged he
was guilty of the charge against him which authorized the imposition of a
bad conduct or dishonorable discharge, and that he did not desire further
rehabilitation, nor had any desire for further military service.  He stated
that he understood the nature and consequences of the under other than
honorable conditions discharge that he might receive.

9.  On 25 July 1978, the separation authority approved the applicant’s
request for discharge and directed that he receive an under other than
honorable conditions discharge.  On 1 August 1978, the applicant was
discharged.  The DD Form 214 he was issued confirms he accrued 245 days of
time lost due to AWOL.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to
upgrade his discharge.  On 15 May 1986, the ADRB reviewed and denied the
applicant's petition to upgrade his discharge.  The ADRB determined that
the applicant's discharge was proper and equitable and that the discharge
was properly characterized as under other than honorable conditions.

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.  An under other than honorable
conditions discharge was normally considered appropriate at that time.

12.  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 (emphasis
added), 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.

13.  Army Regulation 635-200, paragraph 3-7, 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.

14.  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.  The applicant contends his under other than honorable discharge should
be upgraded because he was young, his father died, his mother was sick, and
he has never been in any trouble since his discharge.

2.  The applicant was almost 21 years old when he enlisted; he was older
than the average Soldier upon enlistment.


3.  While it may have been true the applicant's father died and his mother
was ill, these events do not justify the applicant going AWOL for more than
8 months.  The Army responded to every request for emergency leave and
permitted the applicant to visit his ailing parents.

4.  The evidence of record confirms that the applicant was charged with an
offense that is punishable under the Uniform Code of Military Justice with
a punitive discharge.  After consulting with military counsel, the
applicant voluntarily requested discharge from the Army in lieu of trial by
court-martial.

5.  Evidence shows the applicant’s administrative separation was
accomplished in compliance with applicable regulations and there is no
indication of procedural errors that would tend to jeopardize his rights.
The discharge proceedings were conducted in accordance with law and
regulations applicable at the time and the character of the discharge is
commensurate with the applicant's overall record of military service.

6.  The applicant's request for a chapter 10 discharge, even after
appropriate and proper consultation with a military lawyer, tends to show
he wished to avoid the court-martial and the punitive discharge that he
might have received.

7.  The applicant's disciplinary record shows 245 days of lost time due to
AWOL.
8.  Based on his record of indiscipline, the applicant's service does not
meet standards of conduct and performance of duty for Army personnel.  This
misconduct also renders his service as unsatisfactory.  Therefore, he is
not entitled to an honorable or a general discharge.

9  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.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 15 May 1986.  As a
result, the time for the applicant to file a request for correction of any
error or injustice expired on 14 May 1989.  However, 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

__jtm___  __jcr___  __eem___  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 T. Meixell
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016052                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19780801                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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