RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20060001103


      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             |
|     |Ms. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Gerald 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 under other than honorable
conditions be upgraded.

2.  The applicant states, in effect, that he had good evaluations, that he
was never in trouble, and that he received a marksman medal for the M-16
rifle and the Good Conduct Medal.  He states that he was injured very badly
in a motor vehicle accident in Germany in June 1978 and was hospitalized
for three months. When he was released from the hospital and returned to
his company he told his commander that he did not want to be there.  He
states that the man who caused the accident was under the influence of
alcohol and only received nonjudicial punishment and this made him very
angry and disgruntled.  He contends that he had an altercation with this
man.  He also states that he was very young and stupid, that he got mixed
up with drugs, that he got caught with drugs, and that he was discharged.
He points out that since his discharge he has married, raised a family, and
worked hard to provide for his family.

3.  The applicant provides two character reference letters and a copy of
his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 4 February 1980.  The application submitted in this case is
dated
22 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 was born on 17 October 1955.  He enlisted on 10 March
1976 for a period of 4 years.  He successfully completed basic combat
training and advanced individual training in military occupational
specialty 05C (radio teletype operator).

4.  Records show the applicant was injured on 17 June 1978 in a truck
accident and he fractured his pelvis and sustained abdominal trauma.
5.  The facts and circumstances surrounding the applicant’s discharge are
not contained in the available records.  However, on 16 January 1980, the
separation authority approved the applicant’s request for discharge for the
good of the service, submitted under the provisions of Army Regulation 635-
200 on
12 December 1979.

6.  The applicant’s DD Form 214 shows that he was discharged under other
than honorable conditions on 4 February 1980 under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, in lieu of
court-martial.  He had served a total of 3 years, 10 months, and 25 days of
creditable active service.

7.  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.

8.  The applicant provided two character reference letters from his wife
and sister.  His wife attests that she has been married to the applicant
since July 1981 and that he is a good person and good provider.  His sister
attests that their father died when the applicant was 16 and that he went
to work to help support the family.  She states that he also helped his
family financially while in the Army. She further attests that since his
discharge from the military he has been a good provider for his family, a
good father, and a good citizen in his small community.

9.  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 discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.

10.  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.

11.  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.  Age is not a sufficiently mitigating factor.  The applicant was 20 and
1/2 years old when he enlisted and he completed basic combat training and
advanced individual training.

2.  Good post service conduct alone is not a basis for upgrading a
discharge.

3.  The character reference letters submitted on behalf of the applicant
fail to show that his discharge was unjust and should be upgraded.

4.  In the absence of evidence to the contrary, it must be presumed that
the applicant’s separation was administratively correct and in conformance
with applicable regulations.  Without having the discharge packet to
consider, it is presumed his characterization of service was commensurate
with his overall record of service.  As a result, there is no basis for
granting the applicant's request.

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

MP_____  _MF_____  _GP____  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.




                                  __Margaret Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001103                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19800204                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service, in lieu of |
|                        |court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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