RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 February 2008
      DOCKET NUMBER:  AR20070015637


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. John G. Heck                  |     |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, an upgrade of his under other than
honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, he believes his discharge was unjust
because he was young at the time and his mother was really sick as a result
of being divorced from his father.  He claims he did not know what he was
doing at the time.  He claims he was confused and panicked.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he initially enlisted in the United
States Army Reserve (USAR) on 9 November 1977, and entered active duty for
training on 11 November 1977.  He was trained in and awarded military
occupational specialty (MOS) 94B (Food Service Specialist), and he was
released from active duty (REFRAD) and returned to the USAR.

3.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  On 22 October 1979,
he was involuntarily ordered to active duty based on his unsatisfactory
participation in the USAR.  He failed to report for active duty and was
declared absent without leave on
22 October 1979.  He was dropped from the rolls (DFR) on 20 November 1979,
and remained away for 162 days until being apprehended by civil authorities
and returned to military control on 1 April 1980.

4.  On 8 April 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 22
October 1979 through on or about 1 April 1980.

5.  On 9 April 1980, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum punishment authorized under the UCMJ, the significance of a bad
conduct or dishonorable discharge, and of the possible effects of an UOTHC
discharge.  Subsequent to this counseling, the applicant voluntarily
requested discharge for the good of the service under the provisions of
chapter 10, Army Regulation 635-200.

6.  In his request for discharge, the applicant acknowledged his guilt of
the charge against him or of a lesser included offense therein contained,
which also authorized the imposition of a bad conduct or dishonorable
discharge.  He further indicated that he understood that if his request for
discharge were approved, he could receive an UOTHC discharge, which could
result in his being deprived of many or all Army benefits that he would be
administratively reduced to the lowest enlisted grade, and that he could be
ineligible for many or all benefits administered by the Department of
Veterans Affairs (VA).  He further acknowledged his understanding that he
could expect to encounter substantial prejudice in civilian life because of
an UOTHC discharge.  The applicant submitted a statement in his own behalf
that indicated that he was requesting discharge because his mother was in
poor health and he needed to be with her.

7.  25 April 1980, the separation authority approved the applicant's
discharge under the provisions of chapter 10, Army Regulation 635-200 for
the good of the service, and directed the applicant receive an UOTHC
discharge and that he be reduced to the lowest enlisted grade.  On 14 May
1980, the applicant was discharged accordingly.

8.  The DD Form 214 issued the applicant upon his discharge confirms he
completed a total of 5 months, and 13 days of creditable active military
service and that he accrued 162 days of time lost due to AWOL.

9.  There is no indication that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within that board's 15-year
statute of limitations.

10.  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.
An UOTHC discharge normally is appropriate for a Soldier who is discharged
in lieu of trial by court-martial.  However, the separation authority may
direct a general discharge if such is merited by the Soldier's overall
record during the current enlistment.  An honorable discharge is not
authorized unless the Soldier's record is otherwise so meritorious that any
other characterization clearly would be improper.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge was unjust because his
mother was in poor health and he felt he had to be with her, and because he
did not fully understand what was happening to him were carefully
considered.  However, while the illness of his mother at the time was
unfortunate, there is no indication he ever sought assistance with this
situation through his chain of command, or that he pursued a hardship
discharge option at the time.  As a result, these factors are not
sufficiently mitigating to support granting the requested relief.

2.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  However, it does
confirm that after being involuntarily ordered to active duty based on his
unsatisfactory participation in the USAR, he failed to report and remained
AWOL for 162 days until being apprehended by civil authorities and returned
to military control.

3.  The evidence of record confirms he was charged with the commission of
an offense punishable under the UCMJ with a punitive discharge, and after
consulting with defense counsel, the applicant voluntarily requested
discharge from the Army in lieu of trial by court-martial.  In his request
for discharge, he admitted guilt to the charge against him, or of a lesser
included offense, that also authorized the imposition of a bad conduct or
dishonorable discharge.  All requirements of law and regulation were met
and that the rights of the applicant were fully protected throughout the
separation process.

4.  The evidence of record further shows the applicant voluntarily
requested discharge to avoid a court-martial that could have resulted in
his receiving a punitive discharge.  The UOTHC discharge the applicant
received was normal and appropriate under the regulatory guidance, and his
overall undistinguished record of service clearly did not support a general
or honorable discharge at the time, nor does it support an upgrade now.

5.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LDS       __LMD __  __JGH __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070015637                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2008/02/DD                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/05/14                              |
|DISCHARGE AUTHORITY     |AR 635-200 C10                          |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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