RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 September 2006
      DOCKET NUMBER:   AR20060003396


      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. Jessie B. Strickland          |     |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.

2.  The applicant states, in effect, that he received a discharge under
other than honorable conditions from the Regular Army and he subsequently
received a waiver and enlisted in the New Mexico Army National Guard
(NMARNG), where he has served honorably for over 20 years and has received
two reports of separation (DD Form 214) for honorable service during two
calls to active duty and he desires to have his discharge under other than
honorable conditions upgraded so that he can attain full time employment
with the NMARNG.

3.  The applicant provides copies of his DD Forms 214 and a letter to his
congressional representative.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 January 1984.  The application submitted in this case is
dated 7 February 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.  He enlisted in the Regular Army in Albuquerque, New Mexico on 8 June
1982 for a period of 4 years, a $5,000 cash enlistment bonus, airborne
training and training in the infantry career management field.  He
completed his one-station unit training (OSUT) and airborne training at
Fort Benning, Georgia and was transferred to Fort Lewis, Washington for
duty as a light weapons infantryman.  He was advanced to the pay grade of E-
4 on 7 September 1983.

4.  On 1 November 1983, nonjudicial punishment was imposed against him for
failure to go to his place of duty.  His punishment consisted of a
reduction to the pay grade of E-3 and a forfeiture of pay (both suspended
until 30 December 1983), extra duty and restriction.

5.  On 3 November 1983, he went absent without leave (AWOL) and remained
absent in desertion until he was returned to military control at Kirkland
Air Force Base, New Mexico on 18 December 1983.  He was subsequently
transferred to Fort Sill, Oklahoma, where charges were preferred against
him for the AWOL offense.

6.  The facts and circumstances surrounding his administrative discharge
are not present in the available records.  However, his records do contain
a duly constituted report of separation (DD Form 214) which shows that he
was discharged under other than honorable conditions on 31 January 1984,
under the provisions of Army Regulation 635-200, chapter 10, in lieu of
trial by             court-martial.  He had served 1 year, 6 months and 15
days of total active service and had 41 days of lost time due to AWOL.

7.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

8.  On 19 November 1986, the applicant received an approved waiver to
enlist in the NMARNG.  He initially enlisted in the NMARNG for 1 year and
has remained in the NMARNG through a series of continuous reenlistments.
He was promoted to the pay grade of E-6 on 1 June 1996.

9.  His records show that he has been ordered to active duty at least twice
and that his last deployment in support of Operation Iraqi Freedom was for
a period of 1 year and 5 months as a military policeman.  In each instance
he has been honorably released from active duty and returned to his unit.


10.  On 15 July 2005, he was issued his Notification of Eligibility for
Retired Pay at Age 60 (20 Year Letter).

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must indicate
that they are submitting the request of their own free will, without
coercion from anyone and that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 Additionally, the individual must admit guilt of the charges against him
or of lesser included offenses which authorized the imposition of a bad
conduct or dishonorable discharge.  A discharge under other than honorable
conditions is normally considered appropriate.

12.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will
serve to characterize the period of service covered by the DD Form 214 up
to the date of separation.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that
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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.

4.  However, less than 3 years after his discharge, he took the unusual
steps to obtain a waiver to enlist in the NMARNG and has continued to serve
honorably in both peace and war time service.

5.  While the Board does not condone his misconduct during his first
enlistment and does not believe that his service during that period rises
to the level of a fully honorable discharge, as a matter of equity and the
fact that he has endeavored to serve honorably for the past 20 years in the
NMARNG, it would be appropriate as a matter of equity to upgrade his
discharge under other than honorable conditions to a general discharge at
this time.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 January 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 January 1987.  The applicant did not file within
the 3-year statute of limitations; however, based on the available
evidence, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

___DH __  ____JR _  ___SP __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by upgrading his discharge under other
than honorable conditions on 31 January 1984 to a general discharge.




                            _____ Susan Powers_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003396                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1984/01/31                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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