RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 October 2006
      DOCKET NUMBER:  AR20060003809


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Ms. Sherry J. Stone               |     |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 an upgrade of his discharge to a general
discharge.

2.  The applicant states, in effect, that although his discharge was not in
error, he is now requesting an upgrade.

3.  The applicant does not provide any documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 January 1981, the date of his separation from active
duty.  The application submitted in this case is dated 8 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.  The applicant enlisted in the Army on 23 October 1978 for a period of
three years.  After completion of basic and advanced individual training,
he was awarded military occupational specialty 11B (Infantryman).  He
served in Korea during the period 1 February 1979 through 24 January 1980.

4.  Item 21 of the applicant's DA Form 2-1 (Personnel Qualification Record)
shows that he was absent without leave (AWOL) during the period 15
September 1980 through 23 October 1980.

5.  A DD Form 458 (Charge Sheet), dated 17 September 1980, shows the
applicant was charged for being AWOL during the period 15 September 1980
through 23 October 1980.

6.  The facts and circumstances surrounding the applicant's discharge were
not contained in the available records.

7.  The applicant's DD Form 214 shows that he was discharged on 30 January
1981, under the provisions of chapter 10 of Army Regulation 635-200
(Personnel Separations Enlisted Personnel), for conduct triable by court-
martial.  This form further shows he was separated in the pay grade of E-1
and issued an Under Other Than Honorable Conditions discharge.  This form
also shows he served
2 years and 2 months of net active service and had 38 days of lost time due
to AWOL.

8.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

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 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.

10.  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 (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 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be upgraded to an honorable
discharge.


2.  The available evidence does not include a separation packet containing
the  specific facts and circumstances surrounding the applicant's final
discharge processing.  However, it does include a properly constituted DD
Form 214 that identifies the reason and characterization of the applicant's
final discharge.  Therefore, Government regularity in the discharge process
is presumed.

3.  The applicant's separation document confirms he was discharged under
the provisions of chapter 10, Army Regulation 635-200, conduct triable by
court-martial.  In connection with such a discharge, he was charged with
the commission of an offense punishable with a punitive discharge under the
Uniform Code of Military Justice (UCMJ).  Procedurally, he was required to
consult with defense counsel, and to voluntarily request separation from
the Army in lieu of trial by court-martial.  In doing so, he would have
admitted guilt to the stipulated offense(s) under the UCMJ that authorized
the imposition of a punitive discharge. In the absence of information to
the contrary, it is concluded that all requirements of law and regulation
were met and the rights of the applicant were fully protected throughout
the separation process.

4.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.

5.  The applicant's record of service shows he was charged with being AWOL
for over 30 days which is punishable under the UCMJ.  Based on this fact,
his service is deemed unsatisfactory in view of his 38 days of AWOL.  The
applicant's service clearly does not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Therefore, he is not
entitled to either a general or an honorable discharge.

6.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 January 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 January 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

_KLW_  _SJS____  __TMR____  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.




                                      _Kenneth L. Wright__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003809                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1981/01/30                              |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |Admin disch conduct triable by          |
|                        |court-martial                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]