RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 SEPTEMBER 2006
      DOCKET NUMBER:   AR20060001740


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan Powers                  |     |Chairperson          |
|     |Mr. Jonathan Rost                 |     |Member               |
|     |Mr. David Haasenritter            |     |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 or a general discharge.

2.  The applicant states that he enlisted in the Army with flat feet and
that the Army ran him for 2 weeks while he had two fractured legs and
knees.  He states, in effect, that when he complained about the pain that
he was experiencing, he was called a liar.

3.  The applicant provides in support of his application, a statement from
his wife which is written in the Remarks section of his Application for
Correction of Military Records, which indicates that she believes that her
husband deserves an upgrade of his discharge to honorable or general.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 20 February 1981.  The application submitted in this case
is dated 19 January 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.  On 26 March 1980, he enlisted in the United States Army Reserve (USAR)
under the Delayed Entry Program, in Jacksonville, Florida, for 3 years, in
the pay grade of E-1.  He enlisted in the Regular Army for 3 years on 7 May
1980.

4.  The applicant went absent without leave (AWOL) on 11 July 1980, and he
remained absent in desertion until he surrendered to military authorities
and returned to military control on 1 January 1981.

5.  The available records show that on 6 January 1981, the applicant signed
a Statement of Operation for Medical Examination for Separation, indicating
that he had no desire to undergo a separation medical examination.

6.  On 14 January 1981, the applicant was notified that charges were
pending against him for being AWOL.  He acknowledged receipt of the
notification, and after consulting with counsel, he submitted a request for
discharge under the provisions of Army Regulation 635-200, chapter 10, for
the good of the service in lieu of trial by court-martial.  At the time
that he submitted his request for discharge, it indicated that he had no
desire to submit a statement in his own behalf.

7.  The appropriate authority approved the request for discharge on 10
February 1981.  Accordingly, on 20 February 1981, the applicant was
discharged under other than honorable conditions, under the provisions of
Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial.  He had completed 3 months and 20 days of net active service and
he had 5 months and 21 days of lost time due to AWOL.

8.  In the statement that the applicant's wife submitted in support of his
appeal, she states that the applicant suffered two fractured legs and
knees, and that he is a good man who tried 110 percent.  She states that he
was paralyzed at times as a result of his knees and legs, and that although
he was flat footed, he continued to try.  In the statement, the applicant's
wife states that the applicant went AWOL; however, he turned himself in to
military authorities, and that his attending physician was very upset over
the conditions of his legs.  She states that the attending physician wrote
Army officials a nasty letter; however, it was not made a part of his
medical records; and that Veterans at John Pershing have informed her that
considering the length of time that has passed, his discharge should have
already been upgraded.

9.  A review of the applicant's official military records show that he was
seen and treated by physicians for knee and leg pain while he was in the
Army.

10.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitations.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  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.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions and the statement submitted by his wife
have been noted.  However, they are not substantiated by the evidence of
record.  The records show that he complained of knee and leg pain to Army
physicians and he was being treated for his complaints.  There is no
evidence in the available records that supports his contention that he was
being called a liar when he complained of his pain.

4.  Additionally, the fact that the applicant may have been experiencing
pain in his knees and legs is not a sufficient justification for his going
AWOL.  He was AWOL for 5 months and 21 days, which is more than his net
active service. Considering the nature of his offense and his overall
record of service, it does not appear that the type of discharge that he
received was too severe.

5.  In order to justify correction of a military record the applicant must
show 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 20 February 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 19 February 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

____DH _  ___JR __  ___SP___  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.




                                  _____Susan Powers______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001740                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19810220                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 10/FOR THE GOOD OF SERVICE      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  689  |144.7000/FOR THE GOOD OF THE SERVICE    |
|2.  708                 |144.7100/AWOL                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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