RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 December 2006
      DOCKET NUMBER:   AR20060006261


      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:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Michael Flynn                 |     |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 to a general discharge.

2.  The applicant states that he was discharged while suffering mental
stress aggravated by active duty military service that was not diagnosed,
even though mental health treatment was requested.

3.  The applicant provides a letter of explanation of his application, a
copy of his report of separation (DD Form 214), and copies of documents
from his official records.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 29 July 1981.  The application submitted in this case is dated
30 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 was born on 1 June 1959 and enlisted in Cincinnati, Ohio
on
20 March 1980 for a period of 3 years, training as cavalry scout and
assignment to the 194th Armored Brigade at Fort Knox, Kentucky.  At the
time of his enlistment he indicated that his parents resided at different
addresses in Dayton, Ohio and that he had five siblings, four of which
lived at his mother’s address and ranged in ages of 20, 19, 18 and 4 years
of age.  His other brother was a year older than him and in the Army in
Germany.

4.  He completed his basic armor training at Fort Knox and was assigned to
D Troop, 10th Cavalry Regiment for duty as a cavalry scout.

5.  On 11 July 1980, nonjudicial punishment (NJP) was imposed against him
for being absent without leave (AWOL) from 23 June until 1 July 1980.  His
punishment consisted of a forfeiture of $104.00.

6.  On 23 August 1980, NJP was imposed against him for being AWOL from 21
July to 25 July 1980.  His punishment consisted of a forfeiture of pay
(suspended for 1 month), extra duty and restriction.

7.  On 2 October 1980, the applicant went AWOL and remained absent in
desertion until he was returned to military control on 3 June 1981 and
charges were preferred against him for the AWOL offense.

8.  On 5 June 1981, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
       court-martial.  In his request he indicated that he understood the
charges that had been preferred against him, that he was making the request
of his own free will, without coercion from anyone and that he was aware of
the implications attached to his request.  He also admitted that he was
guilty of the charges against him or of lesser included offenses which
authorized the imposition of a bad conduct or dishonorable discharge.  He
acknowledged that he understood that he could receive a discharge under
other than honorable conditions and that he might be deprived of all
benefits as a result of such a discharge.  He also elected to submit a
statement in his own behalf whereas he asserted that he joined the Army
because he was unemployed; however, he could not adjust to the Army.

9.  He underwent a mental status evaluation and was deemed to be mentally
responsible and to have the mental capacity to understand and participate
in the proceedings.

10.  The appropriate authority (a major general) approved his request on 22
June 1981 and directed that he be discharged under other than honorable
conditions.

11.  Accordingly, he was discharged under other than honorable conditions
on 29 July 1981, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 7 months and 27 days
of total active service and had 258 days of lost time due to AWOL.

12.  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.

13.  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 admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions was then and still is
normally considered appropriate.

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 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 or offer
mitigating circumstances 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.  In doing
so he admitted guilt to the charges against him.

4.  The applicant's contentions have been noted; however, they are not
sufficiently mitigating to warrant relief when compared to his
undistinguished record of service and repeated misconduct over such a short
period of service.  His service simply does not rise to the level of
honorable conditions.

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

____JS__  ___LE__  ___MF  __  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 Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006261                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061214                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1981/07/29                              |
|DISCHARGE AUTHORITY     |AR635-200/ch10 . . . . .                |
|DISCHARGE REASON        |Gd of svc                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/a70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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