RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            18 JULY 2006
      DOCKET NUMBER:   AR20050017377


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Ernestine Fields              |     |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 a general discharge.

2.  The applicant states that he was told that if he did not involve
himself with any trouble with the law, his discharge would be upgraded
after 180 days.  He goes on to state that he has been an upstanding citizen
and he desires to have his discharge upgraded as promised.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 March 1983.  The application submitted in this case is dated
14 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.  He enlisted in the Regular Army on 1 August 1977 for a period of 3
years and training as a vehicle recovery specialist.  He completed his
training and was transferred to Fort Hood, Texas.  He was promoted to the
pay grade of E-5 on 27 November 1979.

4.  On 4 February 1980, he reenlisted for a period of 3 years and
assignment to Fort Knox, Kentucky.  He was transferred to Fort Knox on 29
May 1980 and remained there until 5 June 1981, when he was transferred to
Germany for assignment to the 3rd Infantry Division.

5.  On 1 June 1982, he went absent without leave (AWOL) and remained absent
in a deserter status until he was returned to military control at Fort Dix,
New Jersey, on 31 January 1983, where charges were preferred against him
for the AWOL offense.

6.  On 2 February 1983, after consulting with defense counsel, the
applicant submitted a request for discharge for the good of the service,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by court-martial.  In his request he indicated that he understood the
charges that had been preferred against him, that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  Additionally, he acknowledged
that he understood that there was no automatic upgrading or review by any
Government Agency and that it was his responsibility to apply to the Army
Discharge Review Board or this Board if he wished his discharge to be
reviewed.  He further indicated that he had no desire to perform further
military service and declined to submit a statement or explanation in his
own behalf.

7.  The appropriate authority (a major general) approved his request and
directed that he be discharged under other than honorable conditions.

8.  Accordingly, he was discharged under other than honorable conditions on
4 March 1983, under the provisions of Army Regulation 635-200, chapter 10,
in lieu of trial by court-martial.  He had served 4 years, 11 months, and
4 days of total active service.

9.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that Board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate and there have never been any provisions for an automatic
upgrade of such discharges.
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 to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

4.  The applicant's contention that he was told that his discharge would
automatically be upgraded has been noted and found to be without merit.
The evidence of record clearly shows that he acknowledged in his request
for discharge in lieu of trial by court-martial that he understood that
there were no automatic provisions for upgrading his 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 4 March 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
3 March 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

____LE__  ___PM__  ___EF___  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.




                                  ______Lester Echols_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017377                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1983/03/04                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |                                        |
|1.144.7000/689/a70.00   |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]