RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 May 2007
      DOCKET NUMBER:  AR20060015312


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Antonio Uribe                 |     |Member               |
|     |Mr. Rodney E. Barber              |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he understands he made a mistake when
he was on active duty.  He claims he was young and a new father.  He went
absent without leave (AWOL) for 40 days to try and find a home for his
baby.  He claims his command did not give him support and he felt he needed
the time.  He indicates that he was told that if he accepted a discharge,
it would be honorable. He also states that since his discharge, he had
become a productive citizen.  He has worked at the same company for 23
years until it went out of business, and his supervisor is willing to
provide a character reference.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 24 March 1980, the date of his discharge.  The application
submitted in this case is dated 18 October 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 that he initially enlisted in the Regular
Army and entered active duty on 30 September 1977.  He was trained in and
awarded military occupational specialty (MOS) 19D (Cavalry Scout) and he
served for
2 years and 19 days until 18 October 1979, at which time he was honorably
discharged for the purpose of reenlistment.

4.  On 19 October 1979, the applicant reenlisted for 4 years.  His
Personnel Qualification Record (DA Form 2-1) shows, in Item 18
(Appointments and Reductions), that he was promoted to specialist four
(SP4) on 1 May 1979, and that this is the highest rank he attained while
serving on active duty.

5.  Item 9 (Awards, Decorations & Campaigns) of the applicant's DA Form 2-1
shows that during his active duty tenure, he earned the Expert Marksmanship
Qualification Badge with Rifle and Hand Grenade Bars and the Marksman
Marksmanship Qualification Badge with Machinegun Bar.  His record documents
no acts of valor, significant achievement, or service warranting special
recognition.

6.  On 1 January 1980, the applicant departed absent without leave (AWOL)
from his unit in Germany.  He was dropped from the rolls of the
organization on
30 January 1980, and remained away until returning to military control on
11 February 1980, at the Personnel Control Facility, Fort Bragg, North
Carolina.

7.  On 12 February 1980, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from on or about
1 January through on or about 11 February 1980.

8.  On 14 February 1980, after consulting with counsel, the applicant
requested to be discharged under the provisions of chapter 10, Army
Regulation 635-200, for the good of the service in lieu of trial by court-
martial.

9.  On 14 March 1980, the separation authority approved the applicant's
request for discharge and directed he be separated under the provisions of
chapter 10, Army Regulation 635-200, for the good of the service.  He also
directed the applicant receive an UOTHC discharge and that he be reduced to
the lowest enlisted grade.  On 24 March 1980, the applicant was discharged
accordingly.

10.  The separation document (DD Form 214) issued to the applicant upon his
discharge on 24 March 1980, shows that he completed 3 months and 26 days of
his most recent enlistment and a total of 2 years, 1 month and 15 days of
creditable active military service.  It further shows that he accrued 41
days of time lost due to AWOL.

11.  There is no indication that the applicant petitioned the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's
15-year statute of limitations.

12.  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 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 UOTHC is normally
considered appropriate; however, the separation authority may issue a
general, under honorable conditions discharge (GD) or HD if it is warranted
by the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his youth and family problems impaired
his ability to serve, he was not supported by his chain of command, and he
was told he would receive an HD was carefully considered.  However, the
evidence of record confirms the applicant completed more than 2 years of
service and had attained the rank of SP4 before he committed the misconduct
that led to his discharge.  It is also void of any indication that his
chain of command did not try to assist him with his family problems, or
that he was promised an HD.  As a result, the applicant was clearly mature
enough to continue serving while dealing with his personal problems, and to
seek a more appropriate way than going AWOL to deal with his family
problems.

2.  The applicant's post service accomplishments were also considered;
however, while it is noteworthy that he has maintained an excellent
employment record since his discharge, this factor alone is not
sufficiently mitigating to support an upgrade of his discharge at this late
date.

3.  The applicant’s record confirms he was discharged under the provisions
of chapter 10, Army Regulation 635-200, for the good of the service, in
lieu of trial by court-martial.  In connection with such a discharge, he
was charged with the commission of an offense punishable with a punitive
discharge under the UCMJ. Procedurally, he was required to consult with
defense counsel, and to voluntarily request separation from the Army in
lieu of trial by court-martial.  In doing so, he would have admitted guilt
to the stipulated offense(s) under the UCMJ that authorized the imposition
of a punitive discharge.  In the absence of information to the contrary, it
is concluded that all requirements of law and regulation were met and the
rights of the applicant were fully protected throughout the separation
process.  At the time of the applicant's discharge, the separation
authority found the applicant's overall record of service did not support
the issue of a GD or HD, and it does not support an upgrade at this time.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 March 1980, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 23 March 1983.  He failed to 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

___ENA _  ___AU   _  __REB __  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.




                                  _____Eric N. Andersen    __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015312                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/17                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/03/24                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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