RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20050017535


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 discharge be upgraded.

2.  The applicant states that his service was successful until he faced
domestic problems and his wife was overwhelmed and he applied for a
hardship discharge.  He feels like his circumstances were held against him.
 One of his children serves in the Army to carry on the tradition that he
started.  Now he needs medical assistance.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from Active Duty) and a letter of character from his son.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 5 June 1979, the date of his discharge.  The application
submitted in this case is dated 28 October 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 records show the applicant entered active duty on 24 January 1978,
completed training, and was awarded the military occupational specialty
(MOS) 19F (Armor Crewman).

4.  He received nonjudicial punishment (NJP) under Article 15, Uniform Code
of Military Justice, on 16 May 1978 for being absent without leave (AWOL) 7
– 9 May 1978.

5.  The applicant received NJP on 17 July 1978 for being AWOL 5 – 12 July
1978.

6.  He went AWOL on 3 January 1979 and surrendered to military authorities
on 20 April 1979.  Court-martial charges were preferred for this period of
AWOL.

7.  On 27 April 1979, after consulting with counsel and being advised of
his rights and options, the applicant submitted a statement wherein he
admitted to being AWOL from 3 January 1979 to 20 April 1979.  He
acknowledged that his military counsel had advised him of and he understood
his rights under the Uniform Code of Military Justice, that he had been
charged with the commission of an offense punishable under the UCMJ with a
punitive discharge, that this type of discharge would deprive him of many
or all of his benefits as a veteran, and that he could expect to experience
substantial prejudice in civilian life.

8.  Although all of the discharge documentation is not of record, the
evidence of record shows that the applicant was discharged under the
provisions of Army Regulation 635-200, chapter 10, for the good of the
service in lieu of trial by court-martial.

9.  In an undated hand written statement the applicant stated he wanted out
of the service because he was not making enough money, was $18,000.00 in
debt, separated from his family and could not adjust to the Army.

10.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-
martial under other than honorable conditions.  He had 1 year and 14 days
of creditable service with 118 days of lost time.

11.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15 year filing statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.

      a.  Chapter 6 provides, in pertinent part, that Soldiers of the
Active Army and the Reserve Components may be discharged or released
because of genuine dependency or hardship.  The regulation provides that
hardship exists when, in circumstances not involving death or disability of
a member of a Soldier’s (or spouse’s) immediate family, separation from the
Service will materially affect the care or support of the family by
alleviating undue and genuine hardship.

      b.  Chapter 10 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.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no documentation nor does the record contain
any indication that the applicant requested or met the criteria for a
hardship discharge.

2.  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.  There is no indication that the
request was made under coercion or duress.

3.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of the discharge is commensurate
with his overall record.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 June 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 June 1982.  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

__MJF___  _MKP __  __GJP___  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.




                                  __    Margaret K. Patterson_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050017535                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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