RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            06 JULY 2006
      DOCKET NUMBER:   AR20050016570


      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. Eric Andersen                 |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Dennis Phillips               |     |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 under other than honorable
conditions be upgraded to an honorable discharge.

2.  The applicant states that he made a big mistake by going absent without
leave (AWOL); however, he was young and inexperienced in life and had just
gotten married and his wife was pregnant.  He goes on to state that his
wife wanted him around and he felt he was against a wall.  He further
states that he is currently incarcerated, that he is now a different person
and he desires to have his discharge upgraded so he can have a new start in
life.

3.  The applicant provides a copy of his report of separation (DD Form
214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 October 1978.  The application submitted in this case is
dated 4 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 in Fresno, California, on 7 February
1977 for a period of 3 years and training as a unit clerk.  He completed
his basic combat training at Fort Knox, Kentucky, and was transferred to
Fort Benjamin Harrison, Indiana, to undergo his advanced individual
training (AIT).

4.  On 3 May 1977, nonjudicial punishment (NJP) was imposed against him for
being AWOL from 18 April to 25 April 1977.  His punishment consisted of a
forfeiture of pay.

5.  On 26 May 1977, NJP was imposed against him for being AWOL from 9 May
to 19 May 1977.  His punishment consisted of a forfeiture of pay and 14
days of restriction.

6.  He again went AWOL on 13 June 1977 and remained absent in desertion
until he was apprehended by civil authorities in Manitowoc, Wisconsin, on
14 May 1978 and was returned to military control at Fort Knox, where
charges were preferred against him for the AWOL offense.

7.  The facts and circumstances surrounding his administrative discharge
are not present in the available records.  However, his records do show
that he was discharged under other than honorable conditions on 31 October
1978, under the provisions of Army Regulation 635-200, chapter 10, in lieu
of trial by             court-martial.  He had served 9 months and 5 days
of active service and had 354 days of lost time due to AWOL.  His records
also show that he admitted guilt to the offenses for which he was charged.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
the applicant's administrative separation was accomplished in compliance
with applicable regulations with no indication of procedural errors which
would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
overall record of undistinguished service and repeated misconduct.  His
service simply does not rise to the level of a discharge under honorable
conditions.

4.  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.

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 31 October 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 October 1981.  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 __  ____MF _  ____DP _  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 Anderson______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016570                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060706                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1978/10/31                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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