RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 SEPTEMBER 2006
      DOCKET NUMBER:  AR20050017254


      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. Eric Andersen                 |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. Richard Murphy                |     |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 was told his discharge would be
automatically upgraded within 3 to 5 years of his discharge.

3.  The applicant provides a statement in which he describes how he was
charged with being absent without leave (AWOL), when in fact he was given a
weekend pass for doing such a great job during 6 months of on-the-job
training with the military police.  However, when it seemed as if they did
not believe he had gotten a pass and were asking for his car keys and
restricting him to base until further notice, he decided to go AWOL.  He
now wishes that he had not gone AWOL because he now believes things would
have worked out in time, they would have realized he was telling the truth,
and he could have gotten out with an honorable discharge.  He has gotten
hurt and will never be able to work construction again and needs his
medical benefits.  He would also like to go back to school and get a degree
in accounting.  He feels he was unjustly accused and his discharge should
be upgraded so that he can use his medical benefits.

4.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), and extracts of his Personnel
Qualification Record in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 November 1983.  The application submitted in this case is
dated
27 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 enlisted in the Regular Army on 21 April 1981, for a
period of
2 years.

4.  On 28 September 1983, the applicant's commander preferred court-martial
charges against him for being absent without leave (AWOL) from 9 August
1983 until he was apprehended by civil authorities on returned to military
control on
21 October 1983.

5.  The facts and circumstances concerning the applicant's discharge
proceedings are not in the available records.  However, his DD Form 214
shows he was discharged on 22 November 1983, under the provisions of Army
Regulation 635-200, Chapter 10, for the good of the service - in lieu of
court-martial.  He was discharged under other than honorable conditions.
He had
2 years, 4 months, and 20 days of active service and 73 days of lost time.

6.  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 under other than honorable conditions
discharge.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulation
applicable at the time.

2.  The applicant has failed to submit evidence in support of his claim
that he was advised his discharge would be automatically upgraded after 3
to 5 years.

3.  The applicant voluntarily requested separation under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service – in lieu
of trial by court-martial.

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


5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 November 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
21 November 1986.  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

___EA __  __RL____  ___RM __  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.




                                  ______Eric Andersen_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017254                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060914                                |
|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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