RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        07 August 2007
      DOCKET NUMBER:  AR20070003419


      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          |
|     |Ms. Ernestine I. Fields           |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 correction of appropriate military records to
show a reentry eligibility (RE) code which would allow reenlistment.  In
effect, this constitutes a request for removal or waiver of those
disqualifications which preclude reenlistment.  He also requests correction
of the separation code and character of service that is reflected on his
Certificate of Release or Discharge (DD Form 214).

2.  The applicant states that the episode that led to his being declared a
deserter was based on his recovering his father's "bloody" personal affects
after his suicide on 3 January 1983, from the coroner's office in
Lexington, Kentucky, in June 1985, which triggered such a traumatic event
in his life.

3.  The applicant provides in support of his application; a copy of his DD
Form 214; a letter from the Lexington Fayette Urban County Government dated
20 September 2005; a copy of his father's Certificate of Death; a letter
addressed to this Board dated 18 January 2007 explaining why he was absent
without leave (AWOL); a undated letter from a former Ohio Army National
Guard Recruiter requesting that his discharge be upgraded; a letter from
officials at his banking institution dated 7 February 2007; a letter from a
former employer dated 22 January 2007, attesting to his dependability and
job performance; a letter from the Senior Pastor of a church dated 6
February 2007, attesting to his good character and attitude; a copy of a
letter from the Office Manager at a place where he was formerly employed
dated  30 January 2007; and a copy of his arrest record.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 August 1985.  The application submitted in this case
is dated 18 January 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 24 August 1984, the applicant enlisted in the Army in Louisville,
Kentucky, for 3 years, in the pay grade of E-1.  He successfully completed
his training as an infantryman.  He was promoted to the pay grade of E-2 on
24 February 1985.

4.  The applicant went AWOL on 1 April 1985, and he remained absent in
desertion until he surrendered to military authorities at Fort Knox,
Kentucky, on 24 June 1985.

5.  On 1 July 1985, the applicant was notified that charges were pending
against him for being AWOL.  He acknowledged receipt of the notification
and, after consulting with counsel, he submitted a request for discharge
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service in lieu of trial by court-martial.

6.  The appropriate authority approved the request for discharge on 15 July
1985. Accordingly, on 19 August 1985, the applicant was discharged under
other than honorable conditions, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial.  He had completed 9 months and 3 days of net active service.  He
was furnished a KFS (in lieu of trial by court-martial) separation code and
RE-3 and RE-3B codes.

7.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

8.  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.

9.  Army Regulation 635-5-1 prescribes the specific reasons for separating
soldiers from active duty and the separation codes to be entered on DD Form
214.  It provides that when a Soldier’s narrative reason for separation is
in lieu of trial by court-martial a separation code KFS will be entered in
block 26 of the
DD Form 214.

10.  RE-3 applies to persons not qualified for continued Army Service, but
the disqualification is waivable, certain persons who have received bars to
reenlistment, and those discharged under the provisions of chapters 5, 9,
10, 13, 14, and 16 of Army Regulation 635-200.  RE-3B applies to persons
who had lost time.

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 and the documentation that
he submitted in behalf of his appeal has been considered.  However, they
are not sufficiently mitigating to warrant the relief requested.  The
applicant had only 9 months and 3 days of net active service and he had
over 60 days of lost time due to AWOL.  The applicant is commended on his
post-service conduct; however, this factor does not warrant the relief
requested.

4.  The applicant was assigned a separation code and RE codes in accordance
with regulations then in effect.

5.  Although the Army Board for Correction of Military Records has denied
both a change in the applicant's reentry eligibility code and waiver of the
disqualification, this does not mean that he has been completely denied the
opportunity to reenlist.  Recruiting personnel have the responsibility for
initially determining whether an individual meets current enlistment
criteria.  They are required to process a request for waiver under the
provisions of chapter 4, Army Regulation 601-210 (Regular Army and Army
Reserve Enlistment Program).  Therefore, since enlistment criteria does
change, and since the applicant has the right to apply for a waiver, it is
suggested that he periodically visit his local recruiting station to
determine if he should apply for a waiver.

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 should have discovered the alleged error or
injustice now under consideration on 19 August 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 18 August 1988.  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

__RJF___  __EF____  __LDS__  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                 |AR20070003419                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070807                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000/ADMINISTRATIVE DISCHARGE       |
|2.  689                 |144.7000/FTGOS                          |
|3.  706                 |144.7017/SERIOUSNESS OF OFFENSE         |
|4.  708                 |144.7100/AWOL                           |
|5.                      |                                        |
|6.                      |                                        |


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