RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 July 2007
      DOCKET NUMBER:  AR20070003163


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |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 that his discharge under other than honorable
conditions be upgraded to an honorable or a general discharge.

2.  The applicant states, in effect, that he was discharged under other
than honorable conditions after being absent without leave (AWOL) from the
Kansas Army National Guard (KSARNG) for 239 days.  He states that he had
been having marital problems that eventually ended in a divorce and that he
had an ill child and needed to be at home.  He states that he turned
himself in once his problems had been basically resolved and if a review is
completed of his prior honorable discharge from the Army, as well as his
life after service, it will reveal that he led an exemplary life style and
deserves the upgrade that he is requesting.  He states that prior to going
AWOL he was in the process of being medically discharged due to back
problems and that he continues to have back problems.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 8 August 1978.  The application submitted in this case is
dated 21 February 2007.

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.  On 9 February 1976, the applicant enlisted in the KSARNG for 6 years,
in pay grade of E-1.  He was ordered to active duty for training with an
effective date of 7 May 1976.  He successfully completed his training as a
motor transportation operator.  He was promoted to pay grade E-2 on 9 June
1976.



4.  On 28 July 1976, the applicant was placed on a temporary physical
profile as a result of back pain and he had temporary assignment
limitations which included no crawling, stooping, running, jumping,
standing or marching over five miles.  His assignment limitations were not
to exceed 28 days and were automatically cancelled on 28 August 1976.

5.  He was released from active duty (REFRAD) on 1 October 1976, and he was
returned to state control of the KSARNG to complete his remaining service
obligation.

6.  On 9 December 1976, the applicant was promoted to the pay grade of E-3.

7.  In February 1977, the applicant began missing drills due to sinusitis,
which resulted in dizziness and confusion.  The applicant also failed to
drill in March 1977 and in April 1977.

8.  In an undated, unaddressed, handwritten statement, the applicant
indicated that his reason for wanting to get out of the KSARNG was because
he got headaches and he had sinus trouble, which he had all the time.  In
the statement, he indicated that the medication that he was taking for his
headaches and sinuses made him real drowsy and sometimes made him sleep.
He stated that he wanted to get out of the KSARNG because he did not know
how long he was going to have the headaches and need to take the
medication.

9.  In a letter addressed to the applicant's commanding officer dated 4 May
1977, the applicant's attending physician stated that, in accordance with
the authorization by the applicant dated 27 April 1977, he was submitting a
summary of the medical records pertaining to the applicant.  In the letter,
the applicant's physician went on to explain the tests and treatments that
the applicant was undergoing and the numerous times he had treated the
applicant.  The applicant's physician indicated that the applicant was
being transferred to a neurological consultant.

10.  On 18 May 1977, the KSARNG Assistant Adjutant requested that
arrangements be made for a thorough medical examination of the applicant by
the nearest military medical facility to determine if he was medically fit
for service in the KSARNG.

11.  On 2 June 1977, the State Surgeon determined, based on the available
information, there was no evidence of medical confirmation or any reason
for medical discharge.  The applicant was notified of the State Surgeon's

findings by letter dated 8 June 1977 and he was ordered to attend training
assemblies as scheduled.  He was informed of the date and time of the next
training assembly and he was told that his failure to attend would result
in his being in an AWOL status.

12.  The applicant failed to attend the training assembly and on 13 June
1977, he was notified that he was being reduced to pay grade E-2 and that
he had 3 days from receipt of the notification letter to notify his unit of
his intent to submit any matters pertinent in a rebuttal.  He was told that
if he failed to notify the unit of his intent, his reduction would be
effective on the third day.

13.  The available records indicate that on 21 June 1977, the applicant
called the Armory inquiring as to how he could get released from the KSARNG
and who he could speak to regarding this issue.  At that time, the
applicant was reminded that his previous request had been disapproved
because he had no valid reason to be discharged.  The applicant was
unreceptive and would not provide information regarding his new address.
It was documented that the applicant did not wish to attend annual
training.

14.  On 16 September 1977, as a result of the applicant's unsatisfactory
participation in the KSARNG, orders were published ordering him to
involuntary active duty at Fort Leonard Wood, Missouri, effective
24 October 1977, with an active duty commitment of 9 months and 6 days.

15.  On 24 October 1977, the applicant failed to report as ordered and was
reported as being AWOL.  He remained absent until he surrendered to
military authorities and returned to military control on 20 June 1978.

16.  On 29 July 1978, the applicant was notified that charges were pending
against him for being AWOL

17.  The facts and circumstances pertaining to the applicant's discharge
are not on file.  The Report of Separation (DD Form 214) indicates that the
applicant was discharged on 8 August 1978, under other than honorable
conditions, under Army Regulation 635-200, chapter 10, for the good of the
service in lieu of trial by court-martial.  He had completed 6 months and
10 days of net active service and he had approximately 239 days of lost
time due to being AWOL.

18.  On 5 October 1987, the Army Discharge Review Board denied the
applicant's petition to upgrade his discharge.

19.  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.

20.  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 Army Discharge Review Board (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
Army Board for Correction of Military Records (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not
substantiated by the evidence of record.  The available records show that
his service was less than honorable while he was a member of the KSARNG.
He was reduced to the pay grade of E-2 and involuntarily ordered to active
duty for unsatisfactory participation.  The only other type of discharge
that he had was when he was released from active duty training and returned
to his unit with the National Guard.




4.  There is no evidence in the available records nor has the applicant
submitted any evidence to support his contention that he was having marital
problems and that he had a sick child.  The evidence of record shows that
he had a desire to be discharged from the KSARNG and he was informed that
there was no reason, either medical or other, for him to be discharged;
therefore, he opted to go AWOL.

5.  He was AWOL for approximately 239 days.  He had more lost time than he
had active duty service.  Considering the seriousness of his offense, it
does not appear that the type of discharge that he received is too harsh as
it appropriately characterizes his overall record of service.

6.  In order to justify correction of a military record the applicant must
show 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.

7.  In view of the foregoing, there is no basis for granting the
applicant's request.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 5 October 1987.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 4 October 1990.  However,
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

___JLP__  __LDS__   __JGH__  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.




                                  ___Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003163                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070726                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  689  |144.7000/FOR THE GOOD OF THE SERVICE    |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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