RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 October 2006
      DOCKET NUMBER:  AR20060003336


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David Gallagher               |     |Member               |
|     |Mr. Roland Venable                |     |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, that his discharge, characterized as
under other than honorable conditions (UOTHC), be upgraded to honorable.

2.  The applicant states, in effect, that his discharge is inequitable
because it was based on one incident in 28 months with no other adverse
action.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 October 1981, the date of his discharge.  The application
submitted in this case is dated 19 February 2006 but was received for
processing on 2 March 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 record shows he enlisted in the Regular Army on 18 June
1979.  The applicant successfully completed basic combat training and
advanced individual training at Fort Sill, Oklahoma.  On completion of his
one station unit training (OSUT), he was awarded the military occupational
specialty (MOS), 13B, Cannon Crewman.

4.  On 18 June 1981, the applicant was punished under Article 15, Uniform
Code of Military Justice (UCMJ), for wrongful possession of marijuana.  His
punishment consisted of a reduction to pay grade E-2, a forfeiture of pay,
and 14 days extra duty.

5.  Charges were preferred against the applicant on 7 October 1981, for
being absent without leave (AWOL) from 6 July 1981 to 29 September 1981,
which consisted of 85 days.

6.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification
Record), shows that he was AWOL from 19 to 22 February 1981 (4 days) and on
22 September 1981 (1 day).

7.  On 8 October 1981, he consulted with counsel and voluntarily requested
discharge, for the good of the service, in lieu of trial by court-martial,
under the provisions of Army Regulation 635-200, chapter 10.  In doing so,
he acknowledged that he might encounter substantial prejudice in civilian
life and might be ineligible for many or all benefits administered by the
Veterans Administration (VA) if a discharge UOTHC were issued.  He waived
his rights and elected not to submit a statement in his own behalf.

8.  On 15 October 1981, the separation authority approved the applicant's
request for discharge. 

9.  The applicant was discharged in the rank/pay grade, Private/E-1, on
27 October 1981.  He had a total of 2 years, 1 month, and 10 days of net
active service and 90 days of lost time due to AWOL.

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

11.  Army Regulation 635-200 sets forth the basic authority for 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 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.

12.  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.




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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, in
lieu of trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
applicant's request for discharge was made under coercion or duress.

2.  The type of separation directed and the reasons for that separation
appear to have been appropriate considering all the available facts of the
case.

3.  The applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided any evidence to mitigate the character of
his discharge.

4.  The applicant alleges that his discharge is inequitable because it was
based on one incident in 28 months with no adverse action.  The evidence
shows, contrary to his assertion, that he received one article 15, under
the UCMJ, for wrongfully possessing marijuana.  The applicant also had
three periods of AWOL, including one of a duration of 85 days, for a total
of 90 days of lost time.  The performance record the applicant established
for himself is serious and there is insufficient evidence to show that the
applicant now deserves an upgrade of his 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 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 27 October 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 26 October 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

_PM_____  _DRG___  __RSV__  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.




                                  _____Patrick H. McGann _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003336                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19811027                                |
|DISCHARGE AUTHORITY     |AR .635-200, chap 10                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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