RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 August 2006
      DOCKET NUMBER:  AR20060000616


      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. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 he requested a hardship discharge due to his
mother becoming seriously ill and he was the only member of the family who
was available to take care of her.  He needs the upgrade to join the
Virginia Defense Force.

3.  The applicant provides a copy of his 7 May 1981 DD Form 214
(Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 May 1981.  The application submitted in this case is
dated 26 September 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 24 April 1980, entered
active duty on 14 May 1980, completed training, and was awarded the
military occupational specialty (MOS) 11B (Light Weapons Infantryman).

4.  The applicant’s service medical records indicate he sustained an injury
to his left knee on or about 10 June 1980.

5.  The applicant was absent without leave (AWOL) from 16 October 1980
through 1 February 1981.

6.  A DD Form 458 (Charge Sheet) was prepared at some point prior to the
applicant’s return to military control.  The incomplete and undated form,
although signed by the applicant’s unit commander, was never completed to
include the date of his return.

7.  A 23 February 1981 Physical Evaluation Board (PEB) found the applicant
unfit to perform the duties of a private two (E-2) in a trainee status due
to an injury to his left knee.  The PEB found the injury to have been
incurred in the line of duty and warranted a 10 percent disability
evaluation.  The PEB recommended that the applicant’s request to continue
on active duty be denied and that he be separated with severance pay.

8.  On 11 March 1981, after consulting with counsel and being advised of
his rights and options, the applicant submitted a formal request, under the
provisions of Army Regulation 635-200, chapter 10, for discharge for the
good of the service (in lieu of trial by court-martial for an offense
punishable by a bad conduct or dishonorable discharge).  He acknowledged
that if the request was accepted that he could receive a discharge under
other than honorable conditions and be furnished an undesirable discharge
(UD) Certificate.  He acknowledged that such a 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 if he received a UD.

9.  The discharge authority accepted the applicant’s request for discharge,
directed the applicant be reduced to the lowest enlisted pay grade, and
that he be issued an undesirable discharge.

10.  The applicant was discharged on 7 May 1981 under the provisions of
Army Regulation 635-200, chapter 10 with a UD.  He had 8 months and 8 days
of creditable service with 109 days of lost time.

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

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets forth the basic authority for the separation of enlisted
personnel.  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.  However, at the time of the
applicant's separation the regulation provided for the issuance of an
undesirable discharge.


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.

14.  Army Regulation 635-40, paragraph 1-2, in effect at the time, provided
that no enlisted member may be referred for physical disability processing
when action has been or will be taken to separate him or her for unfitness,
except when the officer exercising general court-martial jurisdiction
determines that the disability was the cause or substantial contributing
cause of the misconduct, or that circumstances warrant physical disability
processing in lieu of administrative processing.

DISCUSSION AND CONCLUSIONS:

1.  There is no substantiating evidence to support the applicant’s
assertions that a bonafide hardship existed or, that if such existed, that
he notified his command and requested assistance.

2.  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.

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 7 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 May 1984.  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

__SLP__  _RML____  _JGH___  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.




                                  __    Shirley L. Powell____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060000616                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060815                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19810507                                |
|DISCHARGE AUTHORITY     |AR 635-200 . . . .                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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