RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 December 2006
      DOCKET NUMBER:  AR20060004839


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Larry W. Racster              |     |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 the character of his discharge
and the separation code be changed to a more favorable characterization and
code.

2.  The applicant states, in effect, that he was pending a medical
discharge for an eye disease, Retinitis Pigmentosis, and he made an error
in judgment and went AWOL (absent without leave).  He was rushed out of the
Army before his discharge could be accomplished.  He was given this
discharge and he feels it was unfair.  He served without any problems at
all until this minor incident.

3.  The applicant also states that his military medical records will
indicate this pending medical condition, he went AWOL, he served his time
in confinement, and this discharge seemed the quickest way out.

4.  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 that
occurred on 22 November 1983.  The application submitted in this case is
dated 14 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's military records show he enlisted in the United States
Army Reserve, Delayed Enlistment Program, on 23 December 1981.  On 28
January 1982, the applicant enlisted in the Regular Army for a period of 4
years.  The applicant successfully completed basic combat training at Fort
Dix, New Jersey, and his advanced individual training at Fort Devens,
Massachusetts.  On completion of his advanced training, he was awarded the
military occupational specialty 05D, Electronic Warfare/Signal Identifier
Locator.

4.  On completion of his training, the applicant was assigned to
Headquarters and Headquarters Company, 224th Military Intelligence
Battalion, Hunter Army Airfield, Georgia, as his first duty station.  He
reported to his unit and signed in on 12 October 1982.

5.  On 28 January 1983, medical personnel at the eye clinic of Tuttle Army
Health Clinic evaluated the applicant and imposed a physical profile on him
for "Primary retinal degeneration (Retinitis Pigmentosa) confirmed by
electro-retinography."  The applicant was given assignment limitations and
medical board proceedings were in the process of being scheduled.

6.  A physical evaluation in conjunction with his medical board was
scheduled for 12 May 1983.  The scheduled appointment was cancelled because
the applicant had departed from his unit in an AWOL status on 4 April 1983.
 The evidence further shows he was dropped from the rolls of his unit on
4 May 1983.

7.  On 13 October 1983, the applicant returned to military control at Fort
McPherson, Georgia.  He was assigned to the Special Processing Company,
Fort Knox, Kentucky.

8.  On 21 October 1983, charges were brought against the applicant for
absenting himself from his unit without proper authority on 4 April 1983
and remaining absent until on or about 13 October 1983.

9.  On 24 October 1983, 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 any 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.

10.  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 24 October 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.

11.  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.

12.  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.

13.  On 24 October 1983, the applicant waived a physical examination.  The
applicant's statement states he had been advised of his right to a physical
prior to his separation.  The applicant stated he did not want a physical
examination prior to discharge.

14.  On 24 October 1983, the applicant applied for and was given excess
leave pending approval of his request for discharge for the good of the
service.

15.  The applicant's chain of command unanimously recommended approval of
his request for discharge for the good of the service and on 1 November
1983, the applicant's discharge was approved.  The approving authority, a
major general, directed that he be discharged under other than honorable
conditions and that he be reduced to the pay grade, E-1.  The applicant was
discharged in absentia on 22 November 1983.

16.  The applicant was discharged under other than honorable conditions, in
the rank and pay grade of Private, E-1, on 22 November 1983, under the
provisions of Army Regulation 635-200, Chapter 10, for the good of the
service – in lieu of trial by court-martial.  The separation code, "KFS"
was entered in Item 26 (Separation Code) of the applicant's DD Form 214.

17.  On the date of his discharge, the applicant had completed 1 year, 3
months, and 16 days of creditable active military service and 192 days of
time lost.

18.  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.

19.  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
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.

20.  Army Regulation 635-5-1, in effect at that time, prescribed the
specific authorities (regulatory, statutory, or other directives), the
reasons for the separation of members from active military service, and the
separation code to be used for these stated reasons.  The regulation shows
that the separation code "KFS", as shown on the applicant's DD Form 214, is
appropriate for discharge when the narrative reason for discharge is "For
the Good of the Service – In Lieu of Court-Martial."

21.  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.

22.  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 separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant alleges that he was given this discharge and he feels it
was unfair.  He also alleges that he served without any problems at all
until this minor incident.


2.  The evidence show the applicant was not given this unfairly.  When
court-martial charges were brought against him for AWOL, it was for a
length of time which under any measure can not be called minor; it was he
who requested the discharge.

3.  The applicant's contention that he was pending a medical discharge for
Retinosis Pigmentosis is not factual.  Medical personnel at the eye clinic
of Tuttle Army Health Clinic had evaluated the applicant.  They had imposed
a physical profile on him with assignment limitations and were in the
process of scheduling him for a medical evaluation board.  What the medical
evaluation board would decide in his case can only be speculated upon since
the case did not progress to its conclusion.  Referral to a physical
evaluation board and medical discharge was perhaps one of the likely
outcomes; however, on the scheduled date for his physical examination, his
appointment was cancelled because he was AWOL from his unit.  Any further
evaluations that might have resulted in a medical discharge were suspended
by his unauthorized absence.

4.  The evidence shows that on 21 October 1983, charges were brought
against the applicant for his extensive absence without leave.  The
applicant voluntarily submitted a request for discharge for the good of the
service on 24 October 1983.

5.  The evidence shows the applicant was discharged under the provisions of
Army Regulation 635-200, Chapter 10, for the good of the service – in lieu
of trial by court-martial.  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. The separation
code used on the applicant's DD Form 214, "KFS," is also deemed to have
been the correct separation code based on the facts of the applicant's
case.

7.  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.
8.  There is no evidence that the applicant applied to the ADRB for an
upgrade of his discharge within its 15-year statute of limitations.

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 November 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 November 1986.  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

___D____  _RTD___  __LWR__  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.




                                  _        Richard T. Dunbar__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004839                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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