RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 September 2006
      DOCKET NUMBER:  AR20060000292


      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. Karl L. Briales               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Eric N. Anderson              |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. Richard O. 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, in effect, his under other than honorable
conditions discharge be upgraded to an honorable discharge.

2.  The applicant states that he had to go home to help his mother who was
sick. He further states that his father and grandfather died the same day.
He concludes that he did not have any money or way to get back to post.

3.  The applicant provides a copy of his prior service Honorable Discharge
certificate dated 25 December 1979, a copy of his DD Form 214 (Certificate
of Release or Discharge from Active Duty), a copy of a Defensive Driving
Course certificate of training, and a letter of appreciation dated 8
February 1979.

CONSIDERATION OF EVIDENCE:

11.  The applicant is requesting correction of an alleged error or
injustice which occurred on 15 April 1985, the date of his discharge from
the Army.  The application submitted in this case is dated 4 June 2006.

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's records show he reenlisted in the Regular Army on 18
July 1978.  He was trained in, awarded, and served in military occupational
specialty 11B10 (Infantryman).  The highest rank the applicant attained
while serving on active duty was specialist/pay grade E-4.

4.  On 7 March 1980, the applicant's duty status was changed from present
for duty to absent without leave (AWOL).

5.  On 6 April 1980, the applicant was dropped from the unit rolls for
being AWOL.

6.  On 14 February 1985, the applicant was apprehended and returned to
military control at the U.S. Army Personnel Control Facility, Fort Dix, NJ.
7.  On 15 February 1985, court-martial charges were preferred against the
applicant for AWOL.

8.  On 15 February 1985, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an under other than honorable conditions discharge, and of the
procedures and rights that were available to him.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service in lieu of trial by court-martial.

9.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans
Affairs, and that he could be deprived of his rights and benefits as a
veteran under both Federal and State law.  He also acknowledged that he
understood that he may expect to encounter substantial prejudice in
civilian life by reason of an under other than honorable conditions
discharge.

10.  On 26 March 1985, the separation authority approved the applicant’s
request for discharge and directed that he receive an under other than
honorable conditions discharge.  Accordingly, on 15 April 1985, he was
discharged.  His DD Form 214 confirms he completed a total of 1 year, 9
months, and 21 days of creditable active military service and that he
accrued 1,804 days of time lost due to AWOL.

11.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

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
submit a request for a discharge for the good of the service in lieu of
trial by court-martial.  The requests may be submitted at any time after
charges have been preferred and must include the individual’s admission of
guilt.  Army policy states that although an honorable or general discharge
is authorized, a discharge under other than honorable conditions is
normally considered appropriate.
13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his under other than honorable conditions
discharge be upgraded to an honorable discharge.

2.  The evidence of record shows the applicant had 1,804 days of lost time
due to AWOL, an offense punishable by a punitive discharge.  His voluntary
request for separation under the provisions of Army Regulation 635-200,
chapter 10, even after appropriate and proper consultation with a military
lawyer, tends to show he wished to avoid the court-martial and the punitive
discharge that he might have received.

3.  The applicant's voluntary request for separation 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.

4.  Based on his extensive period of AWOL, the applicant's service does not
meet standards of conduct and performance of duty for Army personnel.  This
misconduct also renders his service as unsatisfactory.  His service did not
meet the requirements of an honorable or a general 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 15 April 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
14 April 1988.  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

__ena___  __rml___  __rom___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 N. Anderson
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000292                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060914                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19850415                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 10                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.7000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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