RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060006438


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Ms. Susan Powers                  |     |Member               |
|     |Mr. Dennis Phillips               |     |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 under other than
honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he was available to sign item 21
(Signature of Member Being Separated) on his DD Form 214 (Certificate of
Release or Discharge from Active Duty) at the time of his separation;
however, item 21 on his DD Form 214 states he was unavailable for
signature.  He contends that he was never told that he was being court-
martialed, that he asked to be released from his remaining contract due to
the illness of his wife and young baby, and that he was a faithful Soldier
with no marks at that time.  He states that he immediately reenlisted on 22
May 1981 with an honorable discharge which is not on his DD Form 214.  He
also contends that he would like his rank upgraded from private/E-1 to his
original rank specialist four/E-4 because he never received a DD Form 214
upon his separation from the Army.

3.  The applicant provides no additional evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 June 1983.  The application submitted in this case is dated
13 April 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 on 15 June 1978 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 64C (motor transport operator).
 He attained the rank of specialist four on 1 January 1980.  On 21 May
1981, he was honorably discharged for immediate reenlistment.  He
reenlisted on 22 May 1981 for a period of 3 years.

4.  On 20 December 1982, the applicant went absent without leave (AWOL) and
returned to military control on 12 April 1983.  On 15 April 1983, charges
were preferred against the applicant for the AWOL period.
5.  On 19 April 1983, the applicant consulted with counsel and requested
discharge for the good of the service under the provisions of Army
Regulation 635-200, chapter 10.  He indicated in his request that he
understood he might request discharge for the good of the service because
of the AWOL charge preferred against him under the Uniform Code of Military
Justice which authorized the imposition of a bad conduct or dishonorable
discharge, that he might be discharged under conditions other than
honorable and furnished an other than honorable discharge; that he might be
ineligible for many or all benefits administered by the Veterans
Administration; that he would be deprived of many or all Army benefits; and
that he might be ineligible for many or all benefits as a veteran under
both Federal and State law.  He also acknowledged that he might expect to
encounter substantial prejudice in civilian life because of an other than
honorable discharge.  He elected not to make a statement in his own behalf.


6.  A DA Form 31 (Request and Authority for Leave), dated 19 April 1983,
shows the applicant’s request for excess leave was approved and he departed
on excess leave on 19 April 1983.

7.  On 2 June 1983, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions and reduced to private.

8.  Orders, dated 9 June 1983, show the applicant was reduced in rank to
private effective 2 June 1983.

9.  Accordingly, the applicant was discharged under other than honorable
conditions on 24 June 1983 under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service, in lieu of court-martial.  He had
served a total of 4 years, 8 months, and 17 days of total active service
with 114 days of lost time due to AWOL.  His DD Form 214 shows the entry,
“IMMEDIATE RE-ENLISTMENT THIS PERIOD: 810522” in item 18 (Remarks).

10.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

11.  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 a request for discharge for the good of the service in lieu of trial
by court-martial.  The request may be submitted at any time after charges
have been preferred and must include the individual's admission of guilt.
Although an honorable or general discharge is authorized, a discharge under
other than honorable conditions is normally considered appropriate.  The
regulation also states, in pertinent part, that when a member is to be
issued a discharge under other than honorable conditions, the convening
authority will direct his immediate reduction to the lowest enlisted grade.

12.  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.

13.  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.

14.  Army Regulation 635-5 (Separation Documents) states, in pertinent
part, that a DD Form 214 will not be issued for enlisted members discharged
for immediate reenlistment in the Regular Army.  The regulation also states
that when the separatee cannot or will not sign, enter “Member not
available to sign” or “Member refused to sign” in item 21 on the DD Form
214.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was available to sign his DD
Form 214 at the time of his separation, evidence of record shows that he
was on excess leave.  Therefore, in accordance with the governing
regulation, the entry in item 21 on his DD Form 214 is correct.

2.  The evidence of record does not support the applicant’s contention that
he was never told that he was being court-martialed.  Evidence of record
shows a court-martial charge was preferred against him on 15 April 1983 and
that he consulted with counsel on 19 April 1983.  He acknowledged that he
understood he could request discharge for the good of the service because
of the AWOL charge that had been preferred against him under the Uniform
Code of Military Justice which authorized the imposition of a bad conduct
or dishonorable discharge.
3.  The evidence of record does not support the applicant’s contention that
his immediate reenlistment on 22 May 1981 is not on his DD Form 214.  Item
18 on his DD Form 214 properly reflects his immediate reenlistment on 22
May 1981.  The governing regulation also states that a DD Form 214 will not
be issued for enlisted members discharged for immediate reenlistment in the
Regular Army.

4.  In accordance with the governing regulation, the applicant was reduced
to private as a result of his voluntary request for discharge and impending
discharge under other than honorable conditions.  Therefore, there is no
basis for granting his request to change his rank to specialist four.

5.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial,
was administratively correct and in conformance with applicable
regulations.  He had an opportunity to submit a statement in which he could
have voiced his concerns and he failed to do so.

6.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.

7.  Since the applicant’s record of service included 114 days of lost time,
his record of service during his second enlistment was not satisfactory and
did not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, the applicant's record of service is
insufficiently meritorious to warrant a general or honorable discharge.

8.  Records show the applicant should have discovered the alleged injustice
now under consideration on 24 June 1983; therefore, the time for the
applicant to file a request for correction of any injustice expired on 23
June 1986.  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

JM_____  _SP_____  _DP_____  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 Meixell______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006438                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19830624                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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