RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20060727
      DOCKET NUMBER:  AR20050016922


      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. Joyce A. Wright               |     |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, in effect, that his discharge, characterized as
under other than honorable conditions (UOTHC), be upgraded to honorable.

2.  The applicant states, in effect, that he was told that 6 months after
his discharge he could request that it be changed to honorable; however, he
did not do anything with it but would like to put it in good standing now.

3.  The applicant provides 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 injustice which
occurred on 15 April 1981, the date of his discharge.  The application
submitted in this case is dated 28 October 2005, but was received for
processing on 28 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 military records show he entered active duty on 23 May
1979, as a power generation and wheel vehicle mechanic (63B).  He was
promoted to private first class (PFC) effective 23 May 1980.  This would be
the highest rank/pay grade he would attain while he was on active duty.

4.   Charges were preferred against the applicant on 11 February 1981, for
being absent without leave (AWOL) from 6 August to 27 October 1980, from 18
to 27 November 1980, and from 8 December 1980 through 3 February 1981.

5.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record-
  Part ll), shows that he was AWOL from 8 August through 26 October 1980
(70 days), from 18 to 26 November 1980 (9 days), and from 8 December 1980
through 2 February 1981 (56 days).

6.  On 11 February 1981, he consulted with counsel and voluntarily
requested discharge, for the good of the service, in lieu of trial by court-
martial, under the provisions of Army Regulation 635-200, chapter 10.  In
doing so, he acknowledged that he might encounter substantial prejudice in
civilian life and might be ineligible for many or all benefits administered
by the Veterans Administration (VA) if a discharge UOTHC were issued.  He
waived his rights and elected not to submit a statement in his own behalf.

7.  On 23 March 1981, the separation authority approved the applicant's
request for discharge and directed that he be furnished an UOTHC discharge
and that he be reduced to the lowest enlisted grade. 

8.  The applicant was discharged in the rank/pay grade, Private/E-1, on
15 April 1981.  He had a total of 1 year, 5 months, and 28 days of net
active service and 135 days of lost time due to AWOL.

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

10.  Army Regulation 635-200 sets forth the basic authority for 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.  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.

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.
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, in
lieu of trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
applicant’s request for discharge was made under coercion or duress.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The applicant alleges that he was told that 6 months after his
discharge he could request that it be changed to honorable; however, by the
applicant's own admission, he took no action to seek an upgrade of his
discharge until now.

4.  The applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided any evidence to mitigate the character of
his discharge.

5.  The evidence of record shows that the applicant accumulated a total of
135 days of lost time due to AWOL.  An absence of this duration is serious
and there is insufficient evidence to show that the applicant now deserves
an upgrade of his discharge. 

6.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

7.  Soldiers are advised at the place of their separation that it is their
responsibility to request an upgrade if they receive less than an honorable
discharge.  When an application for the upgrade of a discharge is received,
each case is decided on its own merits.  A change may be warranted if it is
determined that the characterization of service or the reason for
discharge, or both, were improper or inequitable.  The Defense Discharge
Review Standards specifically state that no factors should be established
that require automatic change or denial of a change in discharge.




8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 April 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 April 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

___EM __  __JCR__  ___J_____  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                 |AR20050016922                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19810415                                |
|DISCHARGE AUTHORITY     |AR  635-200, chap 10                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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