RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        2 November 2006
      DOCKET NUMBER:  AR20060006654


      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. James Gunlicks                |     |Chairperson          |
|     |Mr. Scott Faught                  |     |Member               |
|     |Mr. Edward Montgomery             |     |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.  He also requests, in effect, that he be issued an
Honorable Discharge Certificate for his service from 5 March 1979 through
2 December 1984.

2.  The applicant states, in effect, that he was pushed into a situation
where he was almost pressured to reenlist and that he was lured with a
bonus and the promise of a good career.  He states that he was treated
unfairly because he was not told that he should wait 24 hours before he
reenlisted so he could get an Honorable Discharge Certificate for his four
years of good service.  He contends that he suffered with depression and
had a substance abuse problem from social pressures and family problems
(his son committed suicide and his other son was killed by gang violence).
He goes on to state that he told his first sergeant in confidence about his
problems, that he needed help, and that he wanted to be discharged.
However, when a captain who did not like him found out, the captain
humiliated and belittled his [the applicant’s] reputation.  He contends
that he had no one to talk to, that he had no other recourse, and that he
went absent without leave (AWOL).

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 20 November 1985.  The application submitted in this case is
dated 3 May 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 5 March 1979 for a period of 4 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 71L (administrative
specialist).  On 30 September 1982, he extended his enlistment for a period
of 28 months.  On 2 December 1984, he was honorably discharged for
immediate reenlistment.  He reenlisted on 3 December 1984 for a period of 4
years.

4.  On 4 April 1985, nonjudicial punishment was imposed against the
applicant for disobeying a lawful order.  His punishment consisted of a
forfeiture of pay (suspended), restriction, and extra duty.  On 16 April
1985, the suspended portion of the sentence was vacated.

5.  Records show that nonjudicial punishment was imposed against the
applicant on 22 April 1985 (circumstances unknown).  His punishment
consisted of a reduction to E-4 (suspended) and a forfeiture of pay.  On 21
May 1985, the suspended portion of the sentence was vacated.

6.  On 10 May 1985, the applicant was enrolled (self referral) in Track II
of the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for
alcohol abuse.  No other information is available.

7.  On 21 May 1985, the applicant underwent a mental status evaluation.
The medical report states, in pertinent part, that “Mood over long period
described as “tired, weary contemplative.” and that his thought content
appeared to be normal and his thought process was within normal limits.

8.  On 29 July 1985, the applicant went AWOL and returned to military
control on 12 October 1985.  On 22 October 1985, charges were preferred
against the applicant for the AWOL period.

9.  On 23 October 1985, 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 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.

10.  On 29 October 1985, the separation authority approved the applicant's
request for discharge and directed that he be furnished a discharge under
other than honorable conditions.

11.  Accordingly, the applicant was discharged under other than honorable
conditions on 20 November 1985 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 6 years, 6 months, and 2 days of total active
service with 76 days of AWOL.

12.  On 15 August 1996, the Army Discharge Review Board (ADRB) denied the
applicant’s request for a general discharge.

13.  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.

14.  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.

15.  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.

16.  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 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 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.

17.  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, in pertinent part, that a DD Form 256A (Honorable Discharge
Certificate) will be issued to all Soldiers receiving an honorable
discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that depression, substance abuse, family
problems, and problems with a superior caused him to go AWOL does not
provide a sufficient basis for upgrading his discharge.  There is no
evidence of record which shows the applicant was diagnosed with depression
prior to his discharge.  Records show he was receiving treatment for his
alcohol problem.  There is no evidence of record to show the applicant
sought assistance from his chain of command or chaplain on a way to resolve
his problems within established Army procedures prior to going AWOL.

2.  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.

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

4.  Since the applicant’s record of service included two nonjudicial
punishments and 76 days of lost time, his record of service 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.

5.  Since the applicant contends that he was not given an Honorable
Discharge Certificate for his first enlistment, and the governing
regulation does not prohibit the re-issuance of a DD Form 256A, it would be
appropriate to issue a DD Form 256A to the applicant for his honorable
service from 5 March 1979 through
2 December 1984.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 15 August 1996.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to
this Board expired on 14 August 1999.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

JG_____  __SF____  ___EM___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by issuing him a DD Form
256A for his enlistment ending 2 December 1984.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading his discharge under other than honorable conditions.



                                  ____James Gunlicks___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006654                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061102                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19851120                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 10                   |
|DISCHARGE REASON        |For the good of the service, in lieu of |
|                        |court-martial                           |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |100.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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