RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 August 2006
      DOCKET NUMBER:  AR20060000740


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Dale E. DeBruier              |     |Member               |
|     |Mr. James R. Hastie               |     |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 undesirable discharge,
characterized as under other than honorable conditions, be upgraded to an
honorable discharge.

2.  The applicant states that he would like his discharge upgraded to
honorable because it has been over 25 years since his discharge, he has not
been in any trouble with the law, and has had a clean record and good work
history.  He continues that this will enable him an opportunity for
employment with the United States Postal Service.

3.  The applicant provides a copy of a letter of clearance, a copy of his
DD Form 214 (Certificate of Release or Discharge from Active Duty), and a
copy of United States Postal Service notice of rating eligible.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 March 1980, the date of his separation from the Army.
The application submitted in this case is dated 7 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 applicant's records show he enlisted in the Regular Army on 5
January 1979 for a period of three years.  He was trained in, awarded, and
served in military occupational specialty 72E10 (Telecommunications Center
Specialist).  The highest rank the applicant attained while serving on
active duty was private/pay grade E-1.

4.  On 16 August 1979, nonjudicial punishment (NJP) under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed
against the applicant for being absent without leave (AWOL) from 12 June
1979 through 6 August 1979.  His punishment consisted of forfeiture of
$125.00 per month for two months; suspend $75.00 per month for 90 days;
restriction to the Chapel, and place of duty for 20 days or upon
reassignment.
5.  On 8 November 1979, charges were preferred against the applicant for
being AWOL from 31 August 1979 through 1 November 1979.

6.  On 8 November 1979, after consulting with counsel, the applicant
submitted a request for discharge for the good of the service under the
provisions of Army Regulation 635-200 (Enlisted Personnel Separations),
chapter 10, in lieu of trial by court-martial.  He indicated in his request
that he understood he could be discharged under other than honorable
conditions and that all the legal and social ramifications of this type of
discharge and what it will mean to him in the future because of a discharge
under other than honorable conditions.

7.  The applicant’s record is void of the separation authorities approved
request of the applicant's discharge and issuance of an under other than
honorable conditions discharge from the Army.  However, the record does
contain a properly constituted DD Form 214, in which we must presume
regularity.  The DD Form 214 shows that, on 3 March 1980, he was separated
for the good of the service under the provisions of chapter 10, Army
Regulation (AR) 635-200 in lieu of trial by court-martial.  In connection
with such a discharge, the applicant was charged with the commission of an
offense punishable under the Uniform Code of Military Justice (UCMJ) with a
punitive discharge.  Procedurally, the applicant was required to consult
with defense counsel and to voluntarily, and in writing, request separation
from the Army in lieu of trial by court-martial.  In doing so, the
applicant admitted guilt to the stipulated or lesser included offenses
under the UCMJ.

8.  The applicant received an under other than honorable conditions
discharge.  He had completed 10 months and 4 days of credible active
service and
117 days of lost time due to AWOL.

9.  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.

10.  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.
11.  Army Regulation 635-200, paragraph 3-7, 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.

12.  Army Regulation 635-200, paragraph 3-7, 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 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 evidence of
procedural errors that jeopardized his rights.

3.  The evidence of record shows the applicant had 117 days of lost time
due to two periods of AWOL and an Article 15 for AWOL.

4.  Based on his record of indiscipline, 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.  Therefore, he is
not entitled to 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 3 March 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
2 March 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

__jea___  __ded___  __jrh___  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.



                                  James E. Anderholm
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000740                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060808                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19800303                                |
|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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