RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20050018030


      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:

|     |Ms. 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, following a death in the family, he went
AWOL (absence without leave) to take care of his elderly aunt, who raised
him.

3.  The applicant provides no additional supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 November 1980, the date of his discharge.  The
application submitted in this case is dated 12 December 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 enlisted on 17 May 1979, completed
training, and was awarded the military occupational specialty (MOS) 11B
(Light Weapons Infantryman).

4.  While assigned to duty in Germany the applicant received nonjudicial
punishment (NJP) under Article 15, Uniform Code of Military Justice, for
being AWOL 2 – 6 November 1979.

5.  On 29 January 1980 the applicant received a Letter of Appreciation from
his platoon leader for his efforts during Exercise Cardinal Point I-80.

6.  The applicant was placed in an AWOL status when he failed to return
from ordinary leave on 23 June 1980.  The applicant returned to military
control on 14 August 1980.



7.  The applicant requested to be placed on excess leave while awaiting
administrative action on a request for discharge in lieu of court-martial
under Army Regulation 635-200, chapter 10.  He was placed on excess leave
for the period 17 August 1980 through 3 November 1980.

8.  The record contains no additional documentation related to the
applicant’s discharge processing.

9.  Although 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.

10.  The applicant was discharged on 3 November 1980 under Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial.  He had 1 year, 3 months, and 26 days of creditable service with
54 days of lost time.  His service was characterized as under other than
honorable conditions.

11.  There is no indication the applicant applied to the Army Discharge
Review Board within its statutory time limits.

12.  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.  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. 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.


2.  The available documentation is insufficient to substantiate that the
applicant was raised by his aunt, that she was in need of assistance that
only he could provide, or that he had made his command aware of any family
problems.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 November 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 2 November 1983.  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.




                                  __ Ma rgaret K. Patterson__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050018030                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |  UOTHC                                 |
|DATE OF DISCHARGE       |19801103                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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