RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       11 October 2006
      DOCKET NUMBER:  AR20060004735


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Patrick H. McGann, Jr.        |     |Chairperson          |
|     |Mr. David R. Gallagher            |     |Member               |
|     |Mr. Roland S. 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 be upgraded to
honorable.

2.  The applicant states, in effect, that when he was getting the discharge
the person processing him told him that it would automatically become an
honorable discharge and he didn't have to sign any paperwork agreeing to
this type of discharge.

3.  The applicant adds that he believes the person coerced him “to what I
didn’t understand so after he typed it up I said I'm not agreeing to those
discharges so I didn't sign it I told him to change the form he said to
late or to bad."

4.  In a DD Form 293, Application for Review of Discharge or Dismissal from
the Armed Forces of the United States, which is appended to his DD Form
149, Application for Correction of Military Record, the applicant stated
his father had died and he was having difficulty with the death.  He had
gone over his leave and when he returned to his unit, he was offered a
discharge.  They said it was a general discharge that would become an
honorable discharge after six months.  He states he was misled into taking
this discharge and that is why he did not sign any paperwork agreeing to
this type of discharge.  He would never have known it if he hadn't sought
information about the discharge or Veterans Programs.

5.  The applicant provides a copy of his DD Form 214, Certificate of
Release or Discharge from Active Duty; a copy of a DD Form 293 he signed
and dated 15 September 1961, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 22 September 1981.  The application submitted in this case is
dated 24 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 limitation 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 Massachusetts Army National Guard on
31 October 1980.  On 7 January 1981, the applicant was ordered to active
duty for training for 20 weeks or until MOS (military occupational
specialty) qualified.

4.  The applicant successfully completed basic combat training at Fort
McClellan, Alabama, on 5 March 1981.  He was sent to Fort Gordon, Georgia,
for training in the MOS 05C, Radio Teletype Operator, and on 1 May 1981, he
was dropped from the course and sent to Fort Benning, Georgia, for training
in the MOS 11B, Light Weapons Infantryman.

5.  On 3 May 1981, the applicant departed AWOL (absent without leave) from
his unit.

6.  On 2 June 1981, the applicant was dropped from the rolls of his
organization.

7.  On 25 August 1981, the applicant surrendered to military authorities at
Fort Devens, Massachusetts.

8.  The applicant was transported to the Personnel Control Facility, Fort
Dix, New Jersey.  While there, he completed a FDCF Form 691A, Personnel
Control Facility Interview, on 27 August 1981.  To the question, "Why did
you go AWOL?" the applicant responded, "I went AWOL because I didn't want
to go through basic training again which was 11B.  They didn't tell me
about any bonus or anything for a National Guard when I talked to the
liaison officer.  I talked to my platoon sergeant and the company commander
for a way of getting out and they told me the only way out is I would get a
court martial."

9.  On 28 August 1981, charges were preferred against the applicant for
absenting himself without authority from his unit on 2 May 1981 and
remaining AWOL until 25 August 1981.

10.  On 28 August 1981, the applicant voluntarily submitted a request for
discharge for the good of the service.  In his request the applicant stated
he understood he could request discharge for the good of the service
because charges had been filed against him under the Uniform Code of
Military Justice (UCMJ), which could authorize the imposition of a bad
conduct or dishonorable discharge.  He added that he was making his request
of his own free will and had
not been subjected to coercion whatsoever by any person.  The applicant
stated he had been advised of the implications that were attached to his
request and that by submitting his request, he acknowledged that he was
guilty of the charge against him or of a lesser or included offense which
also authorized the imposition of a bad conduct or a dishonorable
discharge.  Moreover, he stated that under no circumstances did he desire
further rehabilitation for he had no desire to perform further military
service.

11.  Prior to completing his request for discharge for the good of the
service, the applicant was afforded the opportunity to consult with
counsel.  He consulted with counsel on 28 August 1981 and was fully advised
of the nature of his rights under the UCMJ.  Although he was furnished
legal advice, he was informed that the decision to submit a request for
discharge for the good of the service was his own.

12.  The applicant stated that he understood that if his request were
accepted, he could be discharged under other than honorable conditions and
furnished an under other than honorable conditions discharge certificate.
He was advised and understood the effects of an under other than honorable
conditions discharge and that issuance of such a discharge could deprive
him of many or all Army benefits that he might be eligible for, that he
might be ineligible for many or all benefits administered by the Veterans
Administration [now the Department of Veterans Affairs], and that he might
be deprived of his rights and benefits as a veteran under both Federal and
state law.  He also understood that he could expect to encounter
substantial prejudice in civilian life because of an under other than
honorable conditions discharge.

13.  The applicant was advised that he could submit a statement in his own
behalf, which would accompany his request for discharge.  The applicant
opted not to submit a statement in his own behalf.

14.  The applicant underwent a mental status evaluation on 28 August 1981.
The applicant's behavior was found to be normal.  He was found to be fully
alert and fully oriented.  His mood was unremarkable, his thinking process
was clear, and his thought content was normal.  The applicant's memory was
good.  The evaluating psychiatrist, an Army medical corps lieutenant
colonel, found him to be mentally responsible and he was considered to have
the mental capacity to understand and participate in separation
proceedings.
15.  On 28 August 1981, the applicant applied for and was given authority
for excess leave pending approval of his request for discharge for the good
of the service.

16.  The applicant's chain of command unanimously recommended approval of
his request for discharge for the good of the service and on 8 September
1981, the Commanding General, US Army Training Center and Fort Dix, New
Jersey, approved his request for discharge for the good of the service.
The approval authority directed that the applicant be furnished a discharge
certificate under other than honorable conditions.

17.  The applicant was discharged with an under other than honorable
conditions discharge, in the rank and pay grade of Private, E-1, on 28
August 1981, under the provisions of Army Regulation (AR) 635-200, Chapter
10, for the good of the service.

18.  On the date of his discharge, the applicant had completed 4 months,
and 23 days of creditable active military service.

19.  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.

20.  AR 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, at any time
after the charges have been preferred, 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, but the
separation authority may direct a general discharge or an honorable
discharge if such is merited by the Soldier's overall record and if the
Soldier's record is so meritorious that any other characterization clearly
would be improper.

21.  AR 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.

22.  AR 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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that after not qualifying for award of the MOS 05C,
the applicant was sent to another station to receive training as an light
weapons infantryman.

2.  The evidence shows that after two days at his new duty station, the
applicant departed AWOL.  He remained in this status and was dropped from
the rolls of his unit.

3.  The applicant surrendered himself to military authorities at Fort
Devens Massachusetts.  He was transported to Fort Dix, New Jersey, and
there he voluntarily requested discharge for the good of the service.

4.  Before his request for discharge for the good of the service was
approved, he was given authority to go on excess leave.  Contrary to the
applicant's assertions that he did not agree with the type of discharge he
was given, he requested the discharge and it was not necessary for him to
be present for the DD Form 214 to be prepared and distributed.  Therefore,
his current arguments are invalid and there is no basis for an upgrade of
his discharge.

5.  The evidence shows the applicant was discharged under the provisions of
AR 635-200, Chapter 10, for the good of the service.  In connection with
such a discharge, the applicant was charged with the commission of an
offense punishable under the UCMJ with a punitive discharge.  Procedurally,
the applicant was required to consult with defense counsel, and to
voluntarily, and in writing, request separation from the Army in lieu of
trial by court-martial.  In doing so, the applicant admitted guilt to the
stipulated offenses under the UCMJ.

6.  The evidence shows that all requirements of law and regulation were met
and the rights of the applicant were fully protected throughout the
separation process. The characterization of service for this type of
discharge is normally under other than honorable conditions and the
evidence shows that the applicant was aware
of that prior to requesting discharge.  It is believed that the reason for
discharge and the characterization of service were both proper and
equitable.

7.  Contrary to the applicant additional assertion that he was told that
his discharge would be automatically upgrade to an honorable discharge
after six months, the Army does not have and it has never had a policy for
the automatic upgrade of discharges to honorable after a prescribed passage
of time.

8.  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.

9.  In view of the foregoing, there is no basis for granting the
applicant's request for an upgrade of his under other than honorable
conditions discharge.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 September 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 September 1984.  However, 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, Jr.__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004735                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061011                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |19810922                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.   394                |144.0133                                |
|3.   689                |144.7000                                |
|4.   708                |144.7100                                |
|5.                      |                                        |
|6.                      |                                        |


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