RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 October 2006
      DOCKET NUMBER:  AR20060004737


      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. John T. Meixell               |     |Chairperson          |
|     |Mr. Peter B. Fisher               |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 or
general.

2.  The applicant states, in effect, that he had chronic depression at the
time and before discharge, that he made mistakes and paid for them, was not
properly informed of military procedures, which led to his discharge, and
was informed that his discharge would be honorable.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 March 1983, the date of his discharge.  The application
submitted in this case is dated 23 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 19 July
1979, for 3 years, with an established expiration of term of service (ETS)
of 18 July 1982.  The applicant successfully completed basic combat
training and advanced individual training at Fort Gordon, Georgia.  On
completion of his one station unit training (OSUT), he was awarded the
military occupational specialty (MOS), 36K, Tactical Wire Operations
Specialist.

4.  On 19 September 1979, the applicant was punished under Article 15,
Uniform Code of Military Justice (UCMJ), for wrongfully disposing of
government property (issued back-pack), of a value of $10.00, by throwing
it away.  His punishment consisted of a forfeiture of pay and 7 days
restriction and extra duty.




5.  On 11 February 1980, the applicant was punished under Article 15, UCMJ,
for being absent without leave (AWOL) from 1 October 1979 to 23 January
1980.  His punishment consisted of a forfeiture of pay and 20 days
restriction.

6.  The charges that were prepared and served upon the applicant are not
available for review by the Board; however, on 15 February 1983, the
applicant voluntarily submitted a request for discharge for the good of the
service under the provisions of Army Regulation 635-200, Chapter 10.  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 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.

7.  In his request for discharge, the applicant states he had been charged
with being AWOL from 1 January to 4 February 1981 and from 12 February 1981
to 9 February 1983.

8.  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 15 February 1983 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.

9.  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.
10.  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.

11.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification
Record -
Part ll), shows that he was AWOL from 1 October 1979 to 22 January 1980
(114 days), from 1 January 1981 to 3 February 1981 (34 days), and from
12 February 1981 to 8 February 1983 (727 days).

12.  On 2 March 1983, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge
characterized as UOTHC and that he be reduced to the lowest enlisted
grade. 

13.  The applicant was discharged in the rank/pay grade, Private/E-1, on
18 March 1983.  He had a total of 1 year, 3 months, and 8 days of net
active service and 875 days of time lost due to AWOL.

14.  The applicant's medical records are unavailable for review.

15.  On 16 December 1986, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

16.  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.

17.  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.





18.  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.

19.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

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.  It is evident that court-martial charges were preferred against the
applicant; however, these documents are not available for review and the
applicant failed to provide this information to the Board.  However, his
discharge proceedings indicated that he was charged with AWOL on two
occasions, from 1 January to 4 February 1981 and from 12 February 1981 to
9 February 1983.

4.  There is no evidence in the applicant's records, and the applicant has
provided no evidence, to show that his discharge was unjust.  He also has
not provided evidence sufficient to mitigate the character of his
discharge.

5.  The applicant alleges that he had chronic depression, at the time of
and before his discharge.  His medical records are not available for
review.  There is no evidence in the applicant's records, and the applicant
has provided none, to show that he was diagnosed as having chronic
depression at the time of or before his discharge.

6.  The applicant also alleges that he made mistakes and paid for them,
that he was not properly informed of military procedures, which led to his
discharge, and that he was informed that his discharge was to be honorable.
 However, the evidence shows that he voluntarily requested discharge in
lieu of trial by court-martial and made his request under his own free
will.

7.  Charges were filed against the applicant under the UCMJ, he was clearly
informed of the implications, and acknowledged his guilt.  He consulted
with counsel, was fully advised of his rights, and understood that if his
request were accepted, he could be discharged under other than honorable
conditions.  There is no evidence, and the applicant has provided none, to
show that he was improperly informed of military procedures or that he was
advised his discharge would be honorable.

8.  The evidence of record shows that the applicant accumulated a total of
875 days of lost time due to AWOL.  An absence of this duration is serious
and there is insufficient evidence to show that the applicant now deserves
an upgrade of his discharge.

9.  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.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 16 December 1986.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 15 December 1989.  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

___PF___  ___RCH_  __J_____  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.




                                  _____John T. Meixell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004737                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061017                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19830318                                |
|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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